Gujarat High Court
Divisional Controller vs Rajendrasinh M Jadav on 7 August, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/9364/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9364 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
DIVISIONAL CONTROLLER
Versus
RAJENDRASINH M JADAV
==========================================================
Appearance:
MR HARDIK C RAWAL(719) for the PETITIONER(s) No. 1
MRS VD NANAVATI(1206) for the RESPONDENT(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 07/08/2018
ORAL JUDGMENT
1. Heard Mr.Rawal, learned advocate for the petitioner and Mrs.V.D.Nanavati, learned advocate for respondent.
2. The petitioner - State Road Transport 1 C/SCA/9364/2016 JUDGMENT Corporation has challenged award dated 20.8.2015 passed by learned Labour Court at Jamnagar in Reference (T) No. 426/1992 whereby the learned Labour Court directed present petitioner to reinstate the respondent on his original post with continuity of service but without backwages.
3. So far as factual background is concerned, it has emerged from the record that at the relevant time the claimant was in service with present petitioner.
3.1 When present petitioner terminated service of present respondent on ground of misconduct, he raised industrial dispute with the allegation that the opponent Corporation arbitrarily and illegally terminated his service and therefore he should be reinstated.
3.2 Appropriate government referred the dispute for adjudication to the learned Labour Court at Jamnagar. The learned Labour Court registered the dispute as Reference (T) No.426 of 1992. 2
C/SCA/9364/2016 JUDGMENT 3.3 In his statement of claim, the claimant alleged that he joined the service with opponent corporation in 1977 and he worked as conductor until July, 1990 and thereafter as Traffic Controller from August, 1990 to October, 1991 when the Corporation arbitrarily and illegally terminated his service. He alleged that domestic inquiry was conducted on concocted charge and allegation and that the inquiry was conducted and completed in violation of principles of natural justice and the opponent corporation terminated his service vide order dated 26.10.1991 without granting sufficient opportunity of hearing. He also alleged that though the charge and allegations about misconduct was not proved, the Inquiry Officer submitted report holding that the allegations are proved and the disciplinary authority accepted such incorrect and erroneous report and terminated his service. With such allegations the claimant demanded that corporation should reinstate him with all 3 C/SCA/9364/2016 JUDGMENT consequential benefits.
3.4 The opponent corporation opposed the reference and the statement of claim as well as demand. The corporation denied that the claimant ever worked as traffic controller. It was contended that the claimant was serving as Conductor. The corporation also claimed that charge and allegation of misconduct of serious nature namely not issuing tickets after collecting fare was reported against the claimant and therefore after issuing charge sheet domestic inquiry was conducted in accordance with the principles of natural justice and the rules and regulations applicable to the corporation and on conclusion of the inquiry the Inquiry Officer held that the charge and allegations are proved. Therefore, the competent authority, after taking into account total length of claimant's service (about 3 ½ years) and after taking into account record of post service (10 instances of misconduct during 3 years of service) decided to 4 C/SCA/9364/2016 JUDGMENT terminate service of the claimant and therefore order dated 26.10.1991 came to be passed whereby the respondent came to be dismissed from service. According to Corporation the termination of claimant's service was in pursuance of proved misconduct and that the said decision was neither incorrect nor harsh nor arbitrary. With such submission the Corporation submitted that any relief cannot be granted and reference should be rejected.
3.5 The learned Labour Court, after conclusion of stage of pleading, received evidence from both sides. When the parties closed their evidence learned Labour Court heard rival submissions and passed award dated 10.9.1998.
3.6 In the said proceedings of Reference No.426 of 1992 the claimant initially did not challenge the legality and propriety of the domestic inquiry. The workman, at this stage, also declared that he is engaged in profession as an Advocate and that, therefore, he is not 5 C/SCA/9364/2016 JUDGMENT interested in being reinstated in service. 3.7 After recording such submission by the claimant learned Labour Court passed award dated 10.9.1998 wherein learned Labour Court recorded that the workman has prayed that powers under Section 11A may be exercised and the order of penalty may be set aside. In the said award, the learned Labour Court also recorded that the Corporation did not place on record the report of the Inquiry Officer however from the material available on record learned Labour Court noticed that independent witness are not examined and that in the facts of the case even if it is assumed that the workman committed misconduct, penalty of dismissal from service is harsh and disproportionate. Besides recording the said observation and findings learned Labour Court also recorded that the claimant declared that he is a lawyer and that therefore by submitting a pursis (Exh23) the claimant has declared that he is not interested in reinstatement and that if 6 C/SCA/9364/2016 JUDGMENT lump sum compensation is awarded then he forgoes right for reinstatement. After taking note of the said declaration by the claimant (Exh23) learned Labour Court, vide award dated 10.9.1998, awarded Rs.70,000/ as lump sum compensation. 3.8 The said award dated 10.9.1998 was challenged by corporation in SCA No.5201 of 1999. This Court disposed the said SCA No.5201/99 vide order dated 9.12.1999 wherein the Court observed, clarified and directed that:
"Heard learned Advocates for the parties. Having heard the submissions of the learned Advocates for the parties I am of the opinion that the impugned award deserves to be set aside and remanded back to the Labour Court for readjudication on merits. The learned Advocates for the parties submit that they do not press for reasons. Accordingly the impugned order is set aside and remanded back to the Labour Court for readjudication on merits. It will be open for the parties to lead evidence in detail and it will be open to the workman to challenge the legality and validity of the inquiry and lead evidence in detail. The Labour Court shall make every endeavour to dispose of the matter as expeditiously as possible. Rule made absolute accordingly. No order as to cost.
Consequently, the said reference case was remanded to learned Labour Court.
3.9 On remand, the claimant, in view of the liberty permission granted by this Court vide order dated 9.12.1999, challenged the legality and propriety of the inquiry. Therefore learned 7 C/SCA/9364/2016 JUDGMENT Labour Court decided the said issue as preliminary issue and vide order dated 8.5.2001 learned Labour Court held and declared that the domestic inquiry is defective and therefore illegal. After the said declaration learned Labour Court scheduled further proceedings of the reference to July, 2001.
3.10 The corporation felt aggrieved by the said interlocutory order. Therefore the said decision came to be challenged by the Corporation in Special Civil Application No.11370 of 2001. 3.11 This Court did not entertain the petition on the ground that a petition against interlocutory order does not deserve to be entertained. With the said observation, the Court dismissed Special Civil Application No.11370 of 2001 vide order dated 29.3.2003. The said order reads thus:
"1. The present petition challenges the judgment and award dated 8th May, 2001 passed by the Labour Court, Jamnagar in Reference (LCJ) No.426 of 1992.
2. Mrs. D.T.Shah, learned advocate for the applicant original respondent, submitted that the Civil Application No.529 of 2003 is filed because after the order is passed by this Court in Special Civil Application No.11370 of 2001 on 11 th December, 2001 the proceedings of the main Reference, being Reference (LCJ) No.426 of 1992 are not proceeded further, The said order passed reads as under:
"Rule. Adinterim relief in terms of paragraph 6(D)." 8
C/SCA/9364/2016 JUDGMENT Paragraph 6(D) of the Special Civil Application reads as under:
"Be pleased to grant interim relief staying the execution, implementation and enforcement of the judgment and award dated 08052001, passed by the learned President of the Labour Court, Jamnagar in Reference (LCJ) No.426 of 1992 during the pendency and final disposal of the aforesaid Special Civil Application."
3. The learned Judge of the Labour Court, Jamnagar was pleased to pass an order in Reference (LCJ) No.426 of 1992 on 8th May, 2001 whereby the departmental inquiry held against the respondent workman was held to be in violation of the principles of natural justice and was quashed, and the main Reference was ordered to be placed for rehearing on 25th July, 2001.
4. In Paragraph 6(D) of the petition, it is prayed that the order dated 8th May, 2001 be stayed. What is there to be executed, implemented and enforced of the orders is not made clear in the main petition. Still, by getting this Order of stay of the execution, implementation and enforcement of the order dated 8th May, 2001, the petitioner Corporation has stalled the proceedings of Reference (LCJ) No. 426 of 1992 without there being prayer of stay of further proceedings of the main Reference, which was ordered to be placed on Board on 25th July, 2001. The hard reality of life is that the proceeding of Reference (LCJ) No.426 of 1992 has remained stayed. The respondent workman, after having waited for all this time for final hearing of the petition, filed Civil Application No.529 of 2003 on 18th January, 2003 and prayed for vacating the ad interim relief granted in the Special Civil Application No.11370 of 2001. In this Civil Application, it is stated that though there is no stay of further proceedings of the main Reference, it is a fact that the proceedings of the main Reference do not proceed and, therefore, the respondent workman is constrained to approach this Court.
4. Mrs. D.T. Shah, learned advocate appearing for the relied upon a judgment of this Court in the matter between Dinesh Mills Limited v. Kedarnath R. Pande reported in 39(2) GLR 1431, wherein this Court has taken a view that:
"A petition against an interlocutory order be not entertained as it will be open for the party against whom such an interlocutory order is passed to challenge the said order along with the main/ final order."
Mrs. D.T.Shah, also relief upon a judgment of this Court in Special Civil Application No. 9010 of 1992 (Coram:
N.G.Nandi) dated 9th December, 2002, wherein the learned Single Judge relying upon the aforesaid judgment was pleased to pass the following Order:
"Without entering into the merits of the impugned order this petition can be disposed of on the question of maintainability since the same is directed against the impugned order whereby the Labour Court declared the departmental inquiry to be illegal and against the principles of natural justice. The present case is covered by the principle laid down in the case of Dinesh Mills Ltd. (Supra). In the result the petition is dismissed as not maintainable. Rule is discharged. Interim relief is vacated with a direction to the Labour Court to decide Reference (LCV) no.412 of 1988 in accordance with law, preferably within six months from the date of the receipt of the writ of this order."
5. Taking into consideration the judgement of this Court in the matter of Dinesh Mills Ltds. (Supra) and the Court in Special Civil Application No.9010 of 1992, the present petition 9 C/SCA/9364/2016 JUDGMENT is dismissed as not maintainable. Rule is discahrged. Ad interim relief granted earlier is vacated. The Labour Court, Jamnagar is directed to proceed with the hearing and decide the Reference (LCJ) No.426 of 1992 in accordance with law, preferably within six months from the date of receipt of writ of this order. The observations made by this Court shall not influence the learned Judge while deciding the Reference on merits. No order as to costs."
3.12 Subsequently learned Labour Court proceeded with the reference case and decided the reference, afresh in view of the direction under order dated 9.12.1999 in Special Civil Application No.5201 of 1999, vide award dated 6.5.2004.
3.13 By the said award, learned Labour Court directed present petitioner to reinstate the claimant on his original post, but without backwages.
3.14 In the said award dated 6.5.2004, learned Labour Court recorded findings that from the material on record it has emerged that the workman did commit misconduct however the penalty determined and imposed by the competent authority is harsh. Learned Labour Court further recorded that workman has admitted that he is a practising 10 C/SCA/9364/2016 JUDGMENT lawyer and therefore it would not be appropriate to award backwages however since the workman is ready to surrender / return his Sanad and accept reinstatement, reinstatement on original post can be awarded. The Court, therefore, granted reinstatement but without backwages. 3.15 Feeling aggrieved by said award dated 6.5.2004, the petitioner corporation filed SCA No.12313/2004. This Court considered the said SCA No.12313/2004. After hearing the parties, the Court disposed the petition by modifying the award dated 6.5.2004 in Reference No.426/1992. 3.16 In said SCA No.12313/2004, the petitioner not only challenged direction passed by labour Court to reinstate the claimant on his original post without backwages, but the corporation also challenged labour Court's decision with regard to domestic inquiry. In that background, this Court observed in the decision dated 18.8.2010 in SCA No.12313/2004 that: "2. The facts of the case are that the 11 C/SCA/9364/2016 JUDGMENT respondentworkmanconductor, while on duty on 25th July, 1990, when the bus was checked, was found to have indulged in number of irregularities, which are set out in the written submissions, a copy of which is produced on the record of this petition at page 26. The departmental inquiry was conducted and the respondentworkman was dismissed from service by order dated 13th October, 1991, which gave rise to the aforesaid Reference, being Reference (LCJ) No.426 of 1992. In this Reference, an order was passed on 8th May, 2004 holding the departmental inquiry of the petitionerCorporation to be illegal. This order was challenged by the petitioner Corporation by filing Special Civil Application No.11370 of 2001, which was dismissed by judgement and order dated 29th March, 2003 and a direction was given to the learned Judge of the Labour Court to give priority to the hearing of the matter and decide the Reference as early as possible, preferably within six months from the date of the receipt of the writ of this Court. Thereafter, the petitioner Corporation led documentary evidence and also filed their Written Submissions to prove the charge against the respondentworkman before the Labour Court. The learned Judge has passed the impugned award, partly allowing the Reference mainly on the ground that `earlier, the departmental inquiry was held to be illegal'.
4. Having perused the papers and having heard the learned Advocates for the parties, it is clear that while considering the case of the respondent, the departmental inquiry was held bad. However, at the same time, it is required to be noted that the Labour Court has not imposed any penalty even though there are ten defaults against the respondents. Therefore, I am of the view that interest of justice would be met by imposing a penalty of stoppage of two increments with future effect.
5. In the above premises, the petition is partly allowed by imposing a penalty of stoppage of two increment with future effect. Rule made absolute to the aforesaid extent." From said observations, more particularly from the observation it emerges that:
"...Thereafter, the petitionerCorporation led documentary evidence and also filed their Written Submissions to prove the charge against the respondentworkman before the Labour Court. The learned Judge has passed the impugned award, partly allowing the Reference mainly on the ground that `earlier, the departmental inquiry was held to be illegal'.
4. Having perused the papers and having heard the learned Advocates for the parties, it is clear that while considering the case of the respondent, the departmental inquiry was held bad. However, at the same time, it is required to be noted that the Labour Court has not imposed any penalty even though there are ten defaults against the respondents. Therefore, I am of the view that interest of justice would be met by imposing a penalty of stoppage of two increments with future effect."
3.17 It emerges that the Court took notice of the fact that, (a) the earlier domestic inquiry was 12 C/SCA/9364/2016 JUDGMENT held illegal; (b) labour Court, while passing award dated 6.5.2004, relied on the said previous decision of the labour Court holding that the inquiry is illegal; and (c) this Court, while disposing SCA No.12313/2004 vide order dated 18.8.2010, did not disturb the decision of labour Court whereby labour Court granted reinstatement (on the premise that inquiry was held illegal and therefore, termination cannot be sustained). However, while disposing the corporation's petition, this Court imposed penalty of stoppage of 2 increments with future effect on the premise that while granting reinstatement, labour Court should have imposed appropriate penalty. 3.18 At this stage, it is relevant to recall two orders i.e. order dated 9.12.1999 in SCA No.5201/1999 and order dated 29.3.2003 in SCA No.11370/2001. By order dated 9.12.1999, this Court, while remanding the proceedings clarified that it will be open to the workman to challenge the legality and validity of the inquiry. 13
C/SCA/9364/2016 JUDGMENT Obviously, the legality and propriety of the inquiry was, thereafter, challenged by the workman. The Court, vide order dated 8.5.2001 declared that the inquiry is illegal. The said decision was challenged in SCA No.11370/2001. This Court, vide above mentioned oder dated 29.3.2003, did not entertain the petition with clarification that challenge against interlocutory order cannot be entertained and it would be open to the parties to challenge such interlocutory order with main order. 3.19 In this backdrop, the Court, while passing order dated 18.8.2010 in SCA No.12313/2004 approved labour Court's decision to rely on earlier decision declaring that inquiry is illegal.
3.20 The corporation felt aggrieved by said decision dated 18.8.2010. Therefore, the corporation filed LPA No.2891/10.
3.21 Before proceeding further, it is necessary 14 C/SCA/9364/2016 JUDGMENT to mention that against labour Court's award dated 6.5.2004 whereby labour Court denied backwages (though labour Court awarded reinstatement) even the workman had filed petition i.e. SCA No.24058/2005. The Court, vide common order dated 18.10.2010, rejected the workman's petition. Against the decision dated 18.8.2010, the workman did not file any appeal. On the contrary, the workman approached the corporation with a request/letter dated 27.9.2010 to act in accordance with the decision dated 18.8.2010 and reinstate him accordingly. 3.22 The Division Bench considered LPA No.2891/2010. After hearing the parties, the Court partly allowed the appeal and remanded the proceedings to labour Court with following observations:
"6. Having heard learned advocates for the parties and having perused the papers of the case, we find that the Labour Court has considered the evidence as regards the departmental inquiry conducted against the respondent and found from the proceedings of the departmental inquiry that the misconduct against the respondent was proved. However, the Labour Court before such observation recorded contrary finding that the departmental inquiry was held illegally. These two different findings cannot go together. In any case, if there was evidence led before the Labour Court on the aspect of misconduct of the respondent and if the misconduct could be said to have been proved against the respondent, the Labour Court was required to consider the 15 C/SCA/9364/2016 JUDGMENT entire material before deciding the reference.
7. As rightly submitted by Mr. Rawal, the question of imposing the penalty of stoppage of two increments with future effect would arise when the charge was proved in inquiry. And when the charge of serious misconduct is taken to be proved, learned Single Judge ought not to have substituted the punishment in exercise of powers under Article 226/227 of the Constitution of India.
8. In above such view of the matter, we find that the matter deserves to be remanded to the Labour Court for its fresh consideration.
9. We, therefore, set aside the impugned judgment passed by the learned Single Judge as also the award made by the Labour Court dated 6.5.2004 and remit the matter to the Labour Court for its fresh consideration. The appeal is allowed accordingly. No order as to costs."
From the observations by Division Bench it comes out that Division Bench remanded the proceedings to learned Labour Court 'for its fresh consideration'.
3.23 After Division Bench passed the order dated 30.9.2014 in LPA No.2891/2010 and remanded the proceedings, The learned Labour Court passed fresh award on 20.8.2015 which is challenged in present petition.
4. The principal contention on which the corporation has challenged the award dated 20.8.2015 is that when Division Bench, vide order dated 30.9.2014 in LPA No.2891/2010, directed the learned Labour Court to decide the reference 16 C/SCA/9364/2016 JUDGMENT afresh and when Division Bench clarified that the matter is remanded for fresh consideration, the learned Labour Court should have also decided afresh the issue (related to the domestic enquiry) whether the domestic enquiry was conducted in legal and fair manner or not. Of course, according to learned advocate for the petitioner, the award is not sustainable also because the learned Labour Court has failed to consider that charge and allegations against the workman are proved and that the nature of misconduct is serious and that, therefore, the direction to reinstate the claimant and also the direction granting continuity of service are unjustified. According to learned advocate for the petitioner, in light of the facts of the case, penalty determined by the employer should not have been interfered with by the learned Labour Court and the direction to reinstate the claimant with continuity of service should be set aside and the learned Labour Court should be directed to decide afresh the legality of 17 C/SCA/9364/2016 JUDGMENT inquiry.
5. The submissions by learned advocate for the corporation are opposed by learned advocate for the workman. She would submit that the learned Labour Court repeatedly held that the enquiry was not conducted in legal and fair manner. She submitted that even after the order passed by Division Bench in LPA No.2891/2010, the learned Labour Court addressed the issue of legality and propriety of the enquiry and having regard to the fact that original record was not placed on the file of reference case the learned Labour Court reached to the conclusion that the enquiry was not conducted in fair and legal manner. She would submit that the said finding by the learned Labour Court is recorded in the award and the said conclusion is supported with the proper reasons viz. that there is no evidence (on record of domestic enquiry) which would prove the allegations mentioned in the charge and that, therefore, the contention that the direction to 18 C/SCA/9364/2016 JUDGMENT reinstate the workman is unjustified, should be rejected. She further submitted that the learned Labour Court has not committed any error and the petition should be rejected.
6. I have considered rival submissions and material available on record including impugned award and above mentioned previous orders passed by the learned Labour Court and this Court in earlier proceedings and original record and proceedings, as well
7. At the outset, it is necessary to note that the claimant has crossed prescribed age for superannuation and that, therefore, the question of actual reinstatement now does not survive. 7.1 Further, even the learned Labour Court itself has not granted backwages.
7.2 Since the workman has not taken out any proceeding and has not challenged the said decision, the learned Labour Court's decision denying backwages is, thus, accepted by the 19 C/SCA/9364/2016 JUDGMENT workman.
7.3 Thus, question of examining propriety of the learned Labour Court's decision refusing backwages from the date of termination until the date of impugned award also does not arise because the learned Labour Court has denied the said benefit and the said decision is accepted (not challenged) by the workman. The said decision has attained finality.
7.4 Thus, the only question which arises and survives is with regard to the direction to reinstate the claimant. Though net effect of the above mentioned situation, which presently obtains, is that actual reinstatement is not feasible and does not survive because the claimant has crossed prescribed age for superannuation, however, the corporation disputes and challenges the said direction.
7.5 With regard to the decision about backwages, it is necessary and relevant to recall that even 20 C/SCA/9364/2016 JUDGMENT in the awards passed earlier by the learned Labour Court (which came to be set aside and the proceedings came to be remanded for fresh consideration), the learned Labour Court had, at that time also, not awarded backwages (except in the first award when the learned Labour Court awarded lump sum compensation to the tune of Rs.70,000/ on the basis of workman's declaration that since he is practicing profession as an Advocate, he does not demand reinstatement).
8. In this background, legality and propriety about the direction to reinstate the claimant arises for consideration.
8.1 While challenging the said direction, the corporation would contend that the learned Labour Court committed error in passing impugned award, more particularly in not examining afresh the issue about legality and propriety of domestic inquiry.
9. So as to decide the said issue it is 21 C/SCA/9364/2016 JUDGMENT necessary to first turn to the observations by Division Bench in the order dated 30.9.2014 in LPA NO.2891/2010. In the said order, Division Bench observed that:
"6. Having heard learned advocates for the parties and having perused the papers of the case, we find that the Labour Court has considered the evidence as regards the departmental inquiry conducted against the respondent and found from the proceedings of the departmental inquiry that the misconduct against the respondent was proved. However, the Labour Court before such observation recorded contrary finding that the departmental inquiry was held illegally. These two different findings cannot go together. In any case, if there was evidence led before the Labour Court on the aspect of misconduct of the respondent and if the misconduct could be said to have been proved against the respondent, the Labour Court was required to consider the entire material before deciding the reference."
9.1 True it is that the Division Bench observed that two findings viz. the decision holding departmental inquiry illegal and the decision declaring that the misconduct is proved cannot go together.
9.2 However, the question which would arise in light of petitioner's contention is that can the observations in paragraphs No.6 to 8 by Division Bench in order dated 30.9.2014 be construed to mean that the Division Bench directed learned Labour Court to restart the proceedings from the stage of examination of domestic inquiry i.e. to 22 C/SCA/9364/2016 JUDGMENT again decide the issue as to whether the inquiry is legal and proper or defective or the said order and said observations obliged the Court to proceed on the basis that the inquiry is declared illegal and to commence further proceedings from that stage.
9.3 From the said observations, it comes out that Division Bench took into account that the learned Labour Court had considered evidence as regards domestic enquiry and after considering the said evidence, the learned Labour Court 'found from the proceeding of departmental enquiry that the misconduct against the respondent was proved'. 9.4 Division Bench also noticed that the said conclusion and observation by the learned Labour Court was in conflict with the conclusion by the learned Labour Court that the enquiry was defective and therefore illegal. On this count, Division Bench observed that:
"The Labour Court before such observation recorded contrary finding that the departmental inquiry was held illegally. These two different findings cannot go together'. 23
C/SCA/9364/2016 JUDGMENT 9.5 Having observed thus, Division Bench further observed that 'in any case, if there was evidence led before the Labour Court on the aspect of misconduct of the respondent and if the misconduct could be said to have been proved against the respondent, the Labour Court was required to consider the entire material before deciding the reference'. After making the said observations, Division Bench also recorded that:
"7. As rightly submitted by Mr. Rawal, the question of imposing the penalty of stoppage of two increments with future effect would arise when the charge was proved in inquiry. And when the charge of serious misconduct is taken to be proved, learned Single Judge ought not to have substituted the punishment in exercise of powers under Article 226/227 of the Constitution of India.
8. In above such view of the matter, we find that the matter deserves to be remanded to the Labour Court for its fresh consideration."
9.6 When the said observations are taken into account, it comes out that nowhere in the order Division Bench has recorded finding or conclusion that the learned Labour Court's decision declaring the enquiry illegal, is incorrect. 9.7 All that the Division Bench observed is that the conclusion by the learned Labour Court that misconduct is proved, is contrary to and in 24 C/SCA/9364/2016 JUDGMENT conflict with the finding that the enquiry is illegal.
9.8 The said observation by Division Bench would cast shadow of doubt qua the learned Labour Court's conclusion that misconduct is proved but not qua the observation that the enquiry is illegal.
9.9 From conjoint reading of paragraphs No.6 to 8, it is not possible to hold that the Division Bench disturbed the conclusion holding that the inquiry is defective and therefore, illegal. The said decision dated 8.5.2001 was not disturbed in the order dated 18.8.2010 in SCA No.12313/2004 or in the order dated 29.3.2003 in SCA No.11370/2001. There is nothing in the order by Division Bench to indicate that the legality of the inquiry was to be decided again. The said observations clearly indicate that the learned Labour Court was obliged to restart the proceedings from the stage where the inquiry was declared illegal.
25
C/SCA/9364/2016 JUDGMENT 9.10 This aspect is fortified from the fact that Division Bench, as mentioned above, has not mentioned anywhere in the order that the conclusion by the learned Labour Court about domestic enquiry i.e. that the enquiry was not conducted in legal and fair manner and it was defective / illegal, is incorrect. Division Bench has not set aside the said conclusion of the learned Labour Court.
10. The learned counsel for the petitioner would submit that the learned Labour Court should have decided the legality of inquiry afresh since this Court remanded the case for fresh consideration. 10.1 However, from the examination of the Record & Proceeding of the learned trial Court, it has emerged that after the Court remanded the proceedings to the learned Labour Court vide judgment dated 30.9.2014 in LPA No.2891/2010, the petitioner corporation did not avail the opportunity to prove legality and propriety of 26 C/SCA/9364/2016 JUDGMENT the enquiry and/or to prove the allegations and charge.
10.2 It was for the corporation to avail the opportunity after remand of the proceeding. 10.3 Despite this position, the petitioner corporation, after remand of the proceedings, did not lead fresh / additional evidence to prove the charge and the allegations.
10.4 Instead the corporation led limited evidence i.e. so as to oppose claimant's allegation that he was working as Traffic Controller and to establish that the claimant worked as Conductor and even at relevant time he was a Conductor.
11. From the material on record it has, however, emerged that the claimant failed to establish that he worked as Traffic Controller. Even the learned Labour Court has not accepted the said allegation by the claimant.
11.1 It is pertinent that the learned Labour 27 C/SCA/9364/2016 JUDGMENT Court also reached to the conclusion that the claimant was not employed as and he did not work as Traffic Controller but he was a Conductor and worked as a Conductor.
11.2 In light of the evidence the learned Labour Court has expressly clarified that the claimant should be reinstated on original post of Conductor.
12. When the petitioner corporation itself did not avail opportunity, any fault cannot be found with the learned Labour Court and it cannot be said that the Court did not grant opportunity to the corporation.
12.1 In this context, it would be appropriate to take into account the observations by Hon'ble Apex Court in case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. & Anr. [AIR 1979 SC 1652]. In the said decisions, Hon'ble Apex Court observed and held that:
"33. The employer terminates the service of a workman. That termination raises an industrial dispute either by way of an application under Section 33 of the Act by the employer or by 28 C/SCA/9364/2016 JUDGMENT way of a reference by the appropriate Government under Section
10. If an application is made by the employer as it is required to made in the prescribed form all facts are required to be pleaded. If a relief is asked for in the alternative that has to be pleaded. In an application under Section 33 the employer has to plead that a domestic enquiry has been held and it is legal and valid. In the alternative it must plead that if the Labour Court or Industrial Tribunal comes to the conclusion that either there was no enquiry or the one held was defective, the employer would adduce evidence to substantiate the charges of misconduct alleged against the workman. Now, if no such pleading is put forth either at the initial stage or during the pendency of the proceedings there arises no question of a sort of advisory role of the Labout Court or the Industrial Tribunal unintended by the Act to advice the employer, a party much better off than the workman, to inform it about its rights, namely, the right to lead additional evidence and then give an opportunity which was never sought. This runs counter to the grain of industrial jurisprudence. Undoubtdedly, if such a pleading is raised and an opportunity is sought, it is to be given but if there is no such pleading either in the original application or in the statement of claim or written statement or by way of an application during the pendency of the proceedings there is no duty cast by law or by the rules of justice, reason and fair play that a quasijudicial Tribunal like the Industrial Tribunal or the Labour Court should adopt an advisory by informing the employer of its rights, namely, the right to adduce additional evidence to substantiate the charges when it failed to make good the domestic enquiry and then to give an opportunity to it to adduce additional evidence. This, apart from being unfair to the workman, is against the principles or rules governing the procedure to be adopted by quasijudicial Tribunal, against the grain of adversary system and against the principles governing decision of a lis between the parties arrayed before a quasijudicial Tribunal.
34. Having given our most anxious consideration to the question raised before us, and minutely examining the decision in Cooper Engineering Ltd. case (1975 Lab IC 1441) (SC) to ascertain the ratio as well as the question raised both on precedent and on principle, it is undeniable that there is no duty cast on the Industrial Tribunal or the Labour Court while adjudicating upon a penal termination of service of a workman either under Section 10 or under Section 33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workman. Cooper Engineering Ltd. case merely specifies the stage at which such opportunity is to be given, if sought. It is both the right and abligation of the employer, if it so chooses, to adduce additional evidence to substantiate the charges of misconduct. It is for the employer to avail of such opportunity by a specific pleading or by specific request. If such an opportunity is sought in the course of the proceeding the Industrial Tribunal or the Labour Court, as the case may be, should grant the opportunity to lead additional evidence to substantiate the charges. But if no such opportunity is sought nor there is any pleading to that effect no duty is cast on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges." (Emphasis supplied) 29 C/SCA/9364/2016 JUDGMENT 12.2 Even otherwise, the obligation to seek permission (to lead fresh / additional evidence to prove misconduct) and to avail the opportunity is on the employer and the Court is not obliged to grant such opportunity - much less suo motu - to the employer.
13. Now, it is the stage to revert to and consider the order which was challenged before the Division Bench i.e. the order dated 18.8.2010 passed by this Court in SCA No.12313/2004. The Court, even vide order dated 18.8.2010, did not declare that the learned Labour Court's decision holding enquiry illegal / defective, is incorrect.
14. At this stage, it is necessary and relevant to recall that SCA No.11370/2001 was preferred at interlocutory stage of reference No.426/1992.and against the order dated 8.5.2001 whereby learned Court declared the inquiry defective and therefore, illegal. The Court did not entertain said petition on limited ground viz. that a 30 C/SCA/9364/2016 JUDGMENT petition against an interlocutory order is not maintainable and does not deserve to be entertained. The said order was not challenged by either side. With the said order both sides reverted to learned Labour Court. The said order, thus, attained finality.
15. The relevant fact which stares in the petitioner's face is that vide order dated 8.5.2001, learned Court declared the inquiry defective. The said order dated 8.5.2001 came to be passed in pursuance of the order dated 9.12.1999 passed by this Court in SCA No.5201/1999 (whereby the Court had kept open the right of workman to challenge the legality and validity of the inquiry) and that the said order dated 8.5.2001 (whereby the Court declared the inquiry defective) has not been set aside by this Court in any proceeding at any stage.
15.1 The said order dated 8.5.2001 has attained finality.
31
C/SCA/9364/2016 JUDGMENT 15.2 Another fact which also stares in the face of the petitioner is that as mentioned above, after said order dated 8.5.2001 did not avail the opportunity and did not lead fresh / additional evidence to prove the charge and the allegations.
16. In this view of the matter, the Court was not obliged to again examine and decide as to whether the domestic inquiry was conducted in legal and fair manner or it was defective and illegal. 16.1 In light of the above quoted observations in case of Shankar Chakravarti (supra), all that the learned Court was obliged to do was to allow, if the corporation sought such permission and brought fresh / additional evidence (to prove the charge and allegations i.e. the alleged misconduct), the corporation to lead / place on record such further / fresh or additional evidence to prove misconduct.
17. In this background, learned advocate for the corporation modified the objection and submitted 32 C/SCA/9364/2016 JUDGMENT that the learned Labour Court did not grant opportunity to the corporation to lead evidence to prove the charge and instead, learned Labour Court relied on the same evidence which was on record of domestic inquiry (which came to be declared defective and illegal).
18. In this context, it is necessary to turn to the observation in paragraph No.5 of impugned award.
18.1 It comes out from said observation that when the workman challenged legality and propriety of the inquiry, the corporation, to prove that the inquiry was conducted in fair and legal manner, examined certain witnesses. The workman got his own statement/deposition recorded at Exh.103 and thereafter by his purshis (Exh.104) workman closed his evidence. The corporations' purshis, Exh.105 followed workman's purshis and the corporation, by its purshis Exh.105, declared that it does not intend to lead any other evidence.
33
C/SCA/9364/2016 JUDGMENT 18.2 After the parties filed above mentioned two purshis i.e. Exh.104 and 105, the learned Labour Court rendered previous award dated 6.5.2004. 18.3 Learned Labour Court has, in paragraph No.6 of impugned order, recorded that subsequently vide previous order (dated 8.5.2001) the Court declared the inquiry defective.
18.4 In the said paragraph No.6, learned Labour Court has also recorded details about SCA No.12313/2004 and LPA No.2891/1990. 18.5 In paragraph No.7/1, learned Labour Court has also recorded that after the remand of the proceedings (pursuant to order dated 30.9.2014 in LPA No.2891/2010) the first party (employer) led limited evidence i.e. evidence for limited purpose. The corporation led evidence only to prove that the workman was never appointed / promoted as and never worked as Traffic Controller.
34
C/SCA/9364/2016 JUDGMENT 18.6 After leading such limited evidence, the corporation filed another purshis (at Exh.128 dated 15.12.2014) and closed corporation's evidence (i.e. it declared that it does not want to lead further evidence).
19. It is pertinent that though, after the order dated 30.9.2014 in LPA No.2891/2010, the corporation had the opportunity to lead evidence to prove charge and allegations, the corporation, however, preferred to not lead fresh / new or additional evidence to prove the charge and allegations.
19.1 Instead the corporation filed purshis at Exh.128 (on 15.12.2014) and closed the stage of evidence by the corporation.
20. From conjoint reading of paragraphs No.5 to 7/1, it comes out that after the order passed in LPA No.2891/2010, the corporation failed to lead / did not produce any other witness or fresh / additional evidence or material to prove the 35 C/SCA/9364/2016 JUDGMENT allegations and charge against the workman (after the Court declared the inquiry defective). Subsequently, the workman and the corporation submitted written arguments at Exh.129 and 133 respectively.
21. At this stage, it is pertinent to recall and note that it was vide order dated 8.5.2001 that the learned Labour Court held and declared that the domestic inquiry is defective. Thereafter the corporation had the opportunity to lead evidence and proved the charge and allegations before the learned Labour Court.
21.1 The said opportunity was never denied to the petitioner. It was the corporation that it did not avail opportunity and it did not lead evidence to prove alleged misconduct.
22. Actually, after the learned Labour Court declared in May 2001 that the inquiry is defective, further proceedings of the reference were schedule to take place in July 2001. 36
C/SCA/9364/2016 JUDGMENT 22.1 At that stage, the corporation could have led the evidence to prove the charge against the workman.
22.2 However, the corporation, instead, filed Special Civil Application No.1130 of 2001 which came to be rejected by the High Court vide order dated 29.3.2003.
22.3 Even thereafter the corporation could have availed the opportunity to lead evidence to prove the allegations and to justify its order against the workman.
22.4 However, even at that stage the corporation did not avail the opportunity and did not lead evidence before the learned Labour Court to prove the allegations.
22.5 This situation continued till the learned Labour Court passed the award dated 6.5.2004. The corporation, until the award came to be passed in May 2004, did not lead evidence to prove the 37 C/SCA/9364/2016 JUDGMENT allegations.
22.6 At that stage, the corporation preferred Special Civil Application No.12313 of 2004. The said proceedings ended with the order in Letters Patent Appeal No.2891 of 2010.
22.7 As mentioned above, while partly allowing the said Letters Patent Appeal No.2891 of 2010, this Court remanded the proceedings for fresh consideration. Even at that stage, the corporation again had opportunity to lead evidence and to prove the allegations / misconduct inasmuch as the domestic inquiry was already held illegal vide learned Labour Court's award dated 8.5.2001.
22.8 However, at that stage, i.e. after remand of the proceedings vide this Court's order dated 30.9.2014 in Letters Patent Appeal No.2891 of 2010, the corporation did not lead any evidence in respect of any other issues, much less to prove charge and allegations for which the 38 C/SCA/9364/2016 JUDGMENT workman's service was terminated.
23. Now, in this backdrop, the corporation, in view of the fact that the inquiry is declared defective and illegal and in light of the fact that the said decision has not been disturbed by the High Court, cannot rely on the findings of the Inquiry Officer in respect of such defective inquiry.
23.1 Consequently, the corporation's final decision (about penalty imposed against the workman) which was based on such defective domestic inquiry and unsustainable findings of the Inquiry Officer, cannot survive and such decision would stand vitiated.
23.2 Therefore, the penalty imposed on the premise that the charge and allegations are proved, should also fall.
24. As mentioned earlier, the Record & Proceedings of Reference No.426 of 1992 were called for. This Court has closely examined the 39 C/SCA/9364/2016 JUDGMENT Record & Proceedings. From the Record & Proceedings also, it has not emerged that at any stage after 8.5.2001 (when the learned Labour Court declared and held that the inquiry is defective and illegal) till final order / impugned award dated 20.8.2015 came to be passed, the corporation had ever made any attempt to prove the charge and allegations against the workman. The corporation never brought and produced any witness to prove the allegations. Except the record / proceedings of the domestic inquiry conducted by Inquiry Officer (which came to be declared defective and illegal by the learned Labour Court vide award dated 8.5.2001), any other evidence with regard to allegations / alleged misconduct was never placed on record of the Court by the corporation. Therefore, the learned Labour Court had no other option but to rely on the same documents (which were placed on record by the corporation / which constituted and comprised record of domestic inquiry) to examine and decide as to whether the allegation about 40 C/SCA/9364/2016 JUDGMENT misconduct is correct and whether it can be said that the misconduct is proved and the workman is guilty of alleged misconduct. The way bill, the conductor's tray of tickets, the statements recorded by the Checking Squad, the statements (of the witnesses) recorded by the Inquiry Officer during proceedings of domestic inquiry (all the witnesses examined by the corporation during inquiry), the declaration of the workman about money (personal amount) on his hands when he boarded the bus and commenced his duty, the tickets collected by the Checking Squad from the passengers and such other material which formed part of the record of domestic inquiry, was the material before the learned Labour Court which the Court could take into account (because the corporation did not examine any other witness and did not place any other documents on record). Of course, the evidence which the parties led before the Court at the time when preliminary issue (about legality of the inquiry) came to be decided has been considered by the Court. 41
C/SCA/9364/2016 JUDGMENT
25. From the award, it comes out that the learned Labour Court considered the evidence which was available on record to find out as to whether on the basis of material available on record, the charge and allegations can be said to have been proved or not.
26. On examination of such material which was available on record and on evaluation and appreciation of entire evidence available on record the detailed scrutiny of evidence available on record, the learned Labour Court reached to its own independent conclusion and finding of fact that the charge and allegations (about misconduct) are not proved. The learned Labour Court has recorded said specific finding of fact in the impugned award (in paragraph Nos.13, 14 and 15).
27. When the inquiry is declared defective and therefore illegal and when the said decision has attained finality and when it has emerged that 42 C/SCA/9364/2016 JUDGMENT after such declaration, the employer did not lead fresh evidence to prove misconduct, then the findings recorded by the Inquiry officer holding, inter alia, that the charge and allegations are proved, cannot survive and cannot be sustained because such conclusion is arrived at by the Inquiry Officer on strength of defective inquiry. Therefore, the conclusion by the Inquiry Officer would not survive after the inquiry is declared defective.
27.1 In that view of the matter, the employer's decision imposing penalty on the basis of Inquiry Officer's conclusion which, in turn, is based on defective inquiry, would also not survive and the said penalty order cannot be sustained.
28. From the discussion by the learned Labour Court in paragraph Nos.13, 14 and 15 of the award, it emerges that the learned Labour Court has carefully examined oral as well as documentary evidence which was available on record of the reference case (which comprised the 43 C/SCA/9364/2016 JUDGMENT record of domestic inquiry) and the learned Labour Court has carefully analysed probative value and effect of such evidence and reached to independent finding that the misconduct is not proved.
28.1 During hearing of present petition learned advocate for the petitioner failed to show any material (any document or statement of any witness) which would establish that the findings and conclusions recorded by the learned Labour Court are incorrect or contrary to evidence or that any material evidence is discarded by the learned Labour Court or that the findings and conclusions are perverse.
29. In this view of the matter, the contention by the corporation that the workman is guilty of misconduct and/or the contention that the misconduct is proved and the workman's service came to be terminated for proved misconduct, cannot be sustained. Final conclusion by the learned Labour Court i.e. the charge and 44 C/SCA/9364/2016 JUDGMENT allegations about misconduct are not proved, cannot be faulted. The direction passed by the Court viz. to reinstate the claimant without backwages, has to be examined in this backdrop. In this context, it is relevant to recall and note that foregoing discussion has brought out that -
(a) after detailed scrutiny and examination of entire material and evidence, the learned Labour Court reached to the conclusion that the charge and allegations about misconduct are not proved;
(b) the corporation could not successfully assail the said conclusion. The corporation could not establish any error or infirmity in respect of said conclusion;
(c) when the charge and allegations are not proved (misconduct is not proved) the order of penalty cannot be sustained;
(d) having recorded the conclusion that the 45 C/SCA/9364/2016 JUDGMENT charge of misconduct is not proved the learned Labour Court set aside the penalty;
(e) the said decision is normal, corollary and ordinary consequence of said conclusion;
(f) when penalty order cannot be sustained and when the said order is set aside and when it is formed that the said decision is legal, correct, fair and proper and cannot be faulted;
(g) in this view of the matter, the direction to reinstate the workman would be only corollary and said direction cannot be faulted (Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) 2013 (10) SCC 324];
(h) the petitioner, at that stage, did not establish any exceptional circumstance to convince and satisfy the Court to not pass said direction.
46
C/SCA/9364/2016 JUDGMENT
30. In light of foregoing discussion and for reasons mentioned above, the conclusions by the learned Labour Court and/or final directions cannot be faulted.
31. The said final order and direction is not disturbed.
32. At this stage, some facts and submissions have to be mentioned and recorded in light of the request by the learned advocate for the workman.
It is submitted while it is true that initially the workman himself had declared that since he is a practicing lawyer and he does not want reinstatement, however, subsequently he expressed willingness to rejoin the service and the claimant, thereafter, filed affidavit dated 8.8.2016 wherein he declared that he shall deposit the Sanad with Bar Council as he did not intend to practice profession as lawyer and he intended to rejoin the service with the corporation.
47
C/SCA/9364/2016 JUDGMENT 32.1 After the learned Court passed the award on 20.8.2015 said declaration was formally made by the workman for first time, on affidavit, in August 2016.
32.2 This would mean that until August 2016, the claimant had not surrendered Sanad and till August 2016 he was active in profession as lawyer.
32.3 In this context, it is pertinent to note that the learned Labour Court has accepted said decision and the award / said decision is not challenged by the workman. Therefore, any question claim and to award backwages from the date of termination till the date of award does not arise.
32.4 At this stage, it is pertinent to note that within short span (i.e. in March 2017) after the said declaration the claimant attained prescribed age for superannuation.
32.5 In ordinary circumstances, in light of the 48 C/SCA/9364/2016 JUDGMENT award the question of reinstatement and obligation to reinstate the claimant would arise w.e.f. 20.8.2015, however, in present case, above mentioned facts (about the said affidavit by the workman and about surrendering the Sanad) are also relevant. Another relevant fact is that the workman attained age of superannuation in march 2017 and that now actual reinstatement is not possible.
32.6 Thus, in present case, any other or further order is not required to be passed in present petition, except to declare that the conclusions recorded by the learned Labour Court are just and correct and legal and proper and the final direction and order passed by the learned Labour Court is also just, legal, correct, fair and proper.
32.7 However, during the hearing, the learned advocate for the workman, after taking instructions from the concerned learned advocate who is present in this Court today (7.8.2018), 49 C/SCA/9364/2016 JUDGMENT declared and submitted that according to the calculation by the workman, he would be eligible to receive about Rs.1,36,500/ towards wages for the period from 20.8.2015 (date of award) to March 2017 (when he attained of superannuation), however, the workman assures and declares that even for the 'postaward' period (i.e. for the period from the date of award to the date when he attained age of superannuation) he does not claim and he shall not demand wages, however, he may be paid retiral benefit viz. gratuity. 32.8 Mr.Rawal, learned advocate for the corporation clarified that the corporation does not have pension scheme and so far as provident fund is concerned, in view of the fact that the learned Labour Court has denied backwages, question of provident fund contribution from the date when the service of the petitioner came to be terminated to the date of award (i.e. 20.8.2015) does not arise.
32.9 Now, so far as gratuity is concerned, 50 C/SCA/9364/2016 JUDGMENT learned advocate for the corporation placed on record calculation (approximation) of the amount payable towards gratuity.
32.10 The said calculation reflects that if the penalty of stoppage of two increments is implemented and if the corporation is directed to pay gratuity, then the amount comes to Rs.4,54,000/ and if any penalty is not imposed, then the amount which may become payable towards gratuity would come to around Rs.4,82,000/. 32.11 However, in present petition, which is filed by the corporation, wherein the award dated 25.8.2015 is challenged, this Court cannot consider any issue, submission or claim for any benefit (including wages, provident fund, gratuity, etc.) for 'postawardperiod' i.e. for period after 25.8.2015. This Court also cannot consider the claim for gratuity (or whether such claim is legally tenable or not). If there is any dispute with regard to claim for backwages such claim / dispute can be raised before 51 C/SCA/9364/2016 JUDGMENT Controlling Authority in accordance with provision under Payment of Gratuity Act. 32.12 Therefore, while declaring that the findings, conclusions and final directions by the learned Labour Court are just and legal and they are not disturbed the petition is disposed of.
33. For other claims and for the aspects mentioned above (wages for postawardperiod and/or retiral benefit viz. gratuity) workman may pursue in accordance with law, such remedy and/or take such action, as may be available in law.
With the said clarifications and observations, the petition is disposed of. Ad interim relief, if any, stands vacated forthwith.
Sd/ (K.M.THAKER, J) BHARAT 52