Bombay High Court
M/S. Saudi Arabian Airlines vs Mrs. Shehnaz Mudbhatkal & Another on 25 November, 1998
Equivalent citations: 1999(1)BOMCR643, (1999)1BOMLR687, [1999(81)FLR767], (1999)IILLJ109BOM, 1999(1)MHLJ489
Author: B. N. Srikrishna
Bench: B. N. Srikrishna
ORDER B. N. Srikrishna, J.
1. This writ petition under Articles 226 and 227 of the Constitution of India challenges the Award of the 2nd respondent. First Labour Court, Mumbai, dated 16th April, 1996, made in Reference (IDA) No. 439 of 1986.
Facts:
2. The petitioner is a foreign Airline Company incorporated under the laws of Saudi Arabia and owned by the Kingdom of Saudi Arabia. It is engaged in the transportation of passengers, cargo and mail by air and has offices at various places all over the world including one at Mumbai. The 1st respondent is an ex-employee of the petitioner and the 2nd respondent is the Presiding Officer of the First Labour Court, Mumbai, exercising adjudicatory jurisdiction under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act")
3. The 1st respondent, Mrs. Shehnaz Mudbhatkal, joined the service of the petitioner on 16th November, 1978, as Secretary to the Station Manager. Prior to joining the petitioner's service, she was working in Indian Airlines from 23rd March 1972 to 29th September 1975. It is her case that, though she was designated as Secretary to the Station Manager, she was compelled to perform the higher functions of a Customer Service Agent, though at a lower grade and salary, consequent to which she sustained a loss of Rs. 304/ - per month in her emoluments till she was actually upgraded to the post of Customer Service Agent effective from 1st June 1981. The 1st respondent was last getting a basic salary of Rs. 2,616/- per month plus other allowances as admissible under the applicable Rules. There appears to be a consistent practice in the petitioner company that the post of the Secretary to the Station Manager (Airport) would be upgraded to Customer Services Agent' as and when a vacancy arose. As a matter of fact, one Mrs. Tasneem Nair, who was working as Secretary to the Station Manager (Airport), was upgraded to the post of Customer Service Agent and it is in the vacancy caused that the 1st respondent was engaged as Secretary. While the 1st respondent was working as Secretary, and the next vacancy of Customer Service Agent arose, instead of upgrading the 1st respondent to the said post, the then Station Manager Naji Nahrous requested her to continue in her position as Secretary with an assurance that her seniority would be protected. The said vacancy was filled up by appointing one Ms. Collen Turner, freshly recruited with no practical experience, who had to be trained by the 1st respondent in several jobs of 'Customer Services Agent'.
4. The 1st respondent's service record was good and she received a letter of appreciation from the Station Manager on 10th October 1979. In October 1980, she was also awarded merit salary equivalent to five per cent of her total salary. On 6th September 1984 the 1st respondent was given a merit certificate by the Country Manager (India) she was awarded merit salary of Rs. 543.64 in November 1984 in appreciation of her good work. Finally, the 1st respondent was promoted as 'Customer Services Agent' with retrospective effect from 1st June 1981. During all this period, the 1st respondent faced no difficulty and was carrying out her job to the outmost satisfaction of her superiors, who appreciated the excellent work done by her.
5. Sometime in January 1983, one Abdul Allah Bahrani took charge as Station Manager (Airport) and from thence commenced a series of unfortunate events which culminated in the 1st respondent being removed from service. While camaraderie between boss and subordinate is welcome, it should remain within bounds. The said Bahrani made repeated attempts to transgress the limits of healthy working relationship with a subordinate of different sex. Bahrani used to make persistent demands with the 1st respondent that she come out with him for lunches and dinners, which she politely declined. Then he started making indecent and objectionable personal remarks, like, for example, sometime towards the end of 1983, asking the 1st respondent as to the details of the method of family planning followed by her, a purely personal matter with which neither he nor any other superior officer could have any concern. Naturally, the 1st respondent protested vigorously against such offensive, unwelcome personal remarks. She also told the said Bahrani, politely, but in unmistakable terms, that she had no interest in having any personal relationship with him as it offended her moral values. This rebuff, however polite, perhaps, offended the macho male ego of Bahrani, provoking him to systematically harass the 1st respondent.
6. When the 1st respondent was due for promotion to the post of "Lead Customer Services Agent", she was denied the promotion; it was given to her junior. The improper requests by Bahrani and unwelcome sexual advances continued during the day to day working. When a second vacancy for the promotion of Lead Customer Services Agent arose, the 1st respondent made a representation dated 13th September, 1984 and requested that she be given the promotion since she was entitled to it. Soon after, receipt of the said representation, Bahrani telephoned to the residence of the 1st respondent around midnight and asked her to visit his residence right away to discuss the issue of her promotion. The 1st respondent considered the suggestion to be extremely offensive, expressed her displeasure at the conduct of Bahrani and reported the matter to the petitioner's Country Manager (India), who assured her that suitable action will be taken against Bahrani. Country Manager also requested her not to make a big issue of Bahrani's conduct by officially making a written complaint of the incident, as it would harm her job and reputation as well as the prestige of the petitioner airlines.
7. Perhaps, the Country Manager, without putting anything on record, pulled up Bahrani and this led to Bahrani adopting a vindictive attitude towards the 1st respondent. The 1st respondent's representation dated 13th September, 1984, was totally ignored and the promotion was given to one Collen Turner who was junior to the 1st respondent and in fact had been trained by her on several job functions. The constant harassment at work led to continued mental tension and anxiety for the 1st respondent and resulted in her sickness and applying for leave as approved by the petitioner's doctor. Even after the 1st respondent resumed work, Bahrani continued sexual harassment and humiliation of the 1st respondent by issuing her false memos on untrue and trumped up allegations of negligence in work. For instance, the 1st respondent's request for vacation during a particular period was rejected; she was denied training facilities; serious mistakes of other staff were overlooked, but the 1st respondent was promptly given warning letters on petty and, on occasions, non-existent grounds; the 1st respondent was forced to carry out typing work which was not part of her regular job.
8. The continued harassment meted out to the 1st respondent constrained the 1st respondent to complain to the then Supervisor, A.G. Chani, seeking his intervention in the matter. When the said Supervisor sought clarifications from Bahrani, Bahrani immediately sent the 1st respondent on leave, though such leave had been earlier rejected by him. He further granted extension of leave and sent telex message instructing her to resume duties on 24th January, 1985. When the 1st respondent attempted to resume duty on 24th January, 1985, she was not allowed to do so upto 28th January, 1985, nor was she allowed to sign the muster roll or perform any other duties despite her going to the office everyday. During this period of four days, Bahrani also threatened the 1st respondent that she would be dismissed from work and that he would make sure that the job of the 1st respondent's husband in Saudi Arabia would be put in danger. The 1st respondent during that period was living alone in Mumbai with two small children as her husband was employed in Saudi Arabia. The pressure tactics of Bahrani resulted in creating an acute state of mental anxiety on the part of the 1st respondent and enabled Bahrani to extract an apology letter on 28th January, 1985, after which she was taken back on duty. While taking the said apology letter, Bahrani assured the 1st respondent that it would not be used for official purpose. Contrary to assurance, Bahrani got a suspension order issued to the 1st respondent on the basis of the said letter. The 1st respondent was suspended without wages between 6th February, 1985 to 10th February, 1985. When the 1st respondent resumed her duty on 11th February, 1985 and told Bahrani that the suspension was illegal and that she would take up the matter with the Head Office of the petitioner at Jeddah, Saudi Arabia, Bahrani complained to the Country Manager by his letter dated 11th February, 1985. The Country Manager summoned the 1st respondent to his office on 13th February, 1985 and threatened her that, with the help of the Consul General of Saudi Arabia, he would ensure that her husband lost his job in Saudi Arabia, if she attempted to challenge the suspension order. Left with no recourse, the 1st respondent succumbed to this threat and endured the punishment, though it was based on false grounds and without basis.
9. On or about 12th July, 1985, the 1st respondent was assigned the job of typing, which was not her regular job. In fact, the practice in the petitioner company was that professional typists would be hired on temporary basis for typing jobs as some of the Customer Services Agents did not know typing and it was not a prerequisite for the job. Even though professional typists were available, the 1st respondent was called upon to do heavy typing work every day. This resulted in the 1st respondent developing severe pain in her chest, for which she was medically advised to take rest for about a month commencing on or about 19th July, 1985. Even this leave was sanctioned after the 1st respondent had been examined by the petitioner's Doctor who found that the complaint was genuine.
10. The 1st respondent decided to put an end to the continuous sexual harassment by taking up the matter with the higher authorities of the petitioner Company at its Head Office in Jeddah, Saudi Arabia. She made a representation dated 1st August, 1985 narrating all the facts and forwarded the representation to the Deputy Minister of Defence and Aviation and Inspector General for Civil Aviation, Jeddah, Saudi Arabia. She followed it up with a reminder seeking justice. She also personally sought an appointment and met the petitioner's Executive Vice President Marketing, at Jeddah. He gave her a patient hearing, assuring her that necessary steps would be taken. He also advised her to resume duties and despatched a telex to this effect to the Mumbai office. When the 1st respondent returned to Mumbai and reported for work, she was once again not allowed to resume duties and directed to stand by at home until further orders. Later, the 1st respondent received a letter dated 24th July, 1985 terminating her service, which appeared predated and intended to render ineffective the 1st respondent's representation to the higher authorities at Jeddah. The ostensible reason given in the letter dated 24th July, 1985 for termination of the 1st respondent's service was that she was guilty of wilful insubordination and acts of negligence committed during the month of July 1985 for which there was no explanation.
11. Being aggrieved by her removal from service, the 1st respondent raised an industrial dispute. The industrial dispute was processed under the provisions of the Industrial Disputes Act, 1947 and resulted in a Reference (I.D.A.) No. 439 of 1986 being made to the First Labour Court at Mumbai, under section 10(1) read with section 12(5) of the Industrial Disputes Act, 1947. The Labour Court raised the following issues and answered them as under :-"
(1) Does the workman prove that the opponent has terminated her services by Order dated 24-7-1985 and the order of termination is punitive which touches to the stigma to the career of the workman?
(2) Does the workman prove that she was terminated by way of victimisation?
(3) Whether the said termination is bad as it is against the provisions of section 66 of the Bombay Shops & Establishments Act and against the provisions of section 25 of the Industrial Disputes Act?
(4) Does the opponent prove that the employee was appointed as a Supervisor and she is not a workman as defined in section 2(s) of the I.D. Act 1947?
(5) Whether the workman is entitled to reinstatement with full back wages and continuity of service?
(6) What Order ?
FINDINGS (1) Yes.
(2) Yes.
(3) Yes.
(4) Does not survive.
(5) Yes.
(6) As per final Award."
12. The petitioner applied for framing the following additional issues for trial :-
"(1)(a) Whether the workman was given an opportunity to be heard on the charge-sheet and/or in fair and proper domestic enquiry?
(1)(b) If not, whether the employer proves before me that the workman had committed misconduct/s mentioned in letter dated 24th July, 1985?
(1)(c) Whether the termination is disproportionate to the misconduct proved?"
This application was, however, rejected by the Labour Court. The petitioner challenged the said order of the Labour Court by filing Writ Petition No. 580 of 1988 before this Court. The said writ petition was disposed of by a Consent Order on 25th March 1988 and the Issues raised by the petitioner were permitted to be framed and tried.
13. During the course of the trial before the Labour Court, the petitioner Company sought to produce xerox copies of certain correspondence between the 1st respondent and her husband in Saudi Arabia. By its Order dated 29th November, 1994, the Labour Court declined to admit the said documents, holding them to be privileged under section 122 of the Indian Evidence Act, being communication between spouses during marriage sought to be produced before the Court without the 1st respondent's consent. The petitioner also attempted to issue witness summons to the 1st respondent's husband at Saudi Arabia who declined to come to India far deposing in the matter. The petitioner challenged the said order before this Court unsuccessfully and finally carried the matter to the Supreme Court by way of special leave petition. The petitioner's special leave petition was dismissed by the Supreme Court with the following scathing observations :-
"We are of the view that this petition is wholly frivolous and we dismiss it with costs. We quantify the costs at Rs. 20,000/-. We further direct the Labour Court that the proceedings should be continued and it shall not be stayed at miscellaneous stage."
14. Thereafter the reference was tried on merits without interruption and, finally, by its impugned Award dated 16th April 1996, the First Labour Court, Mumbai, concluded that the 1st respondent had been subjected to sexual harassment by her superior officer Bahrani and that she was victimised for not yielding to the improper sexual advances of the said superior officer by dismissal from service on false and trumped up allegations. Consequently, by the impugned Award, the Labour Court directed reinstatement of the 1st respondent with full back wages and continuity of service with effect from 25th July 1985 with all attendant benefits. Hence, this writ petition.
Contentions :-
15. Mr. Cama, learned Counsel appearing for the petitioner, urged the following contentions :
(i) That the Award is wholly without jurisdiction since the appropriate Government for the petitioner industry is the Central Government;
(ii) That the termination of service is for a misconduct and, therefore, it did not amount to "retrenchment", as erroneously held by the Labour Court;
(iii) That the finding of the Labour Court that the termination of service of the 1st respondent violated the provisions of section 66 of the Bombay Shops and Establishments Act, 1948 is wholly erroneous; and,
(iv) That the Award of the Labour Court is perverse and the conclusions of fact arrived at are such as could not have been arrived at by any reasonable person.
(i) Jurisdiction of the Labour Court
16. At the outset, it needs to be pointed out that this contention was not raised either during the trial in the Labour Court, not even in the writ petition filed in this Court. In fact, the closest ground to this is ground (b) in paragraph 14 which reads as follows :-
"(b) That the learned 2nd respondent has ex facie erred in failing to take cognisance of the fact that after the passing of the Industrial Disputes (Amendments) Act of 1996 the appropriate Government for all airline companies is the Central Government. That, therefore, on and from the time and more particularly at the date of his impugned order the M.R.T.U. & P.U.L.P. Act, 1971 no longer applied to the principal parties hereto and that consequently he had no jurisdiction to further entertain the said complaint or pass any orders thereon."
In my view, the above ground is entirely distinct from what was urged at the bar by Mr. Cama. I am of the view that, considering the peculiar facts and circumstances of this case, and the petitioner's failure to plead the contention both before the trial Court and this Court in the form in which it is urged, this Court should decline permission to raise the contention about the jurisdiction of the Labour Court to make the Award.
17. Despite my aforesaid view, I heard Mr. Cama and I shall examine the contention on merits to avoid backtracking, in case I am wrong. On the merits of the contention, however, I see no substance. But, the factual matrix needs to be fixed to follow the argument.
18. The reference has been made under section 10 of Act, which empowers the appropriate Government to refer an industrial dispute, inter alia, for the adjudication of the Labour Court. The term "appropriate Government" is defined in section 2(a) of the Act. Sub-clause (i) of section 2(a) it enumerates a large number of industries and then provides that in relation to an industrial dispute concerning such industries, the appropriate Government in respect of those industries will be the Central Government. Sub-clause (ii) of section 2(a) provides that, in relation to any other industrial dispute, the State Government is the appropriate Government. As the provisions of section 2(a) stood on the date of reference, i.e. 5th May 1986, the only Airline industries which fell within the ambit of section 2(a) were Indian Airlines and Air India Corporations established under the Air Corporations Act, 1953, as enumerated in Clause (i) of section 2(a) of the said Act. Thus, on the date of the reference, the State Government was the appropriate Government in respect of an industrial dispute in the establishment of the petitioner and, therefore, the reference was validly made to the Labour Court under section 10(1)(c) of the Act. Section 2(a)(i) of the Act was amended by Ordinance No. 1995 (Ordinance No. 12 of 1995) which came into force from 11th October 1995. This Ordinance came to be replaced by the Industrial Disputes (Amendment) Act, 1996 (No. 24 of 1996) which also was brought into force from 11th October 1995. The result of the amendment, as far as we are concerned, is that the words "an air transport service or a Banking or an insurance company" were added at the end of sub-clause (i) of section 2(a) of the said Act. As a consequence of this amendment, the "appropriate Government" in relation to an industrial dispute arising in any Air Transport Services Industry would be the Central Government, from 11th October 1995.
19. Mr. Cama contends that, though initially when the reference was made, the reference had been validly made by the State Government which had jurisdiction to do so, at any rate, from 11th October, 1995 the State Government ceased to be the 'appropriate Government' in respect of an industrial dispute arising in the industry carrying on business in Air Transport Service; that it was only the Central Government which was the appropriate Government from the said day and, consequently, the Labour Court, though seized of the reference, ceased to have jurisdiction to continue the adjudication proceedings on and from 11th October, 1995. He draws support from the fact that the Award made by the Labour Court on 16th April 1996 was sent to the State Government for publication under section 17 of the Act. Since on and from 11th October 1995 the State Government ceased to be the appropriate Government in respect of an industrial dispute in the petitioner's industry, according to him, the State Government would have no jurisdiction to publish the Award at all. Thus, in the submission of the learned Counsel, all proceedings from 11th October 1995 must be deemed to have been rendered null and void.
20. The contention, to say the least, is starling and contrary to well known principles of construction of statutes. Section 6 of the General Clauses Act, 1897, provides that when a Central Act or Regulation repeals any enactment, then, unless a different intention appears, the repeal shall not (i) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; (ii) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (iii) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment. The section further provides that any investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture, liability or punishment may be imposed as if the repealing Act or Regulation had not been passed. As pointed out by the Supreme Court in the case of New Theatres (Carnatic Talkies) Ltd. v. N. Vajrapani, , an amendment is in fact a wider term and it includes abrogation or deletion of a provision in an existing statute. An amendment of substantive law is not retrospective, unless expressly laid down or so found by necessary implication. In the instant case, since Parliament only intended to make a few changes in the existing provisions of section 2 of the said Act, it did not take recourse to repeal of the entire Act and re-enactment, but, wherever Parliament wanted to introduce new provisions, it has done so by suitable amendments. Thus, in my view, the general principle of section 6 of the General Clauses Act, 1897, would equally apply here. The proceeding which had commenced validly upon a reference made by the State Government would have to be carried to its logical conclusion, even after the amendment came into force. Both the Labour Court and the State Government would continue to have jurisdiction, respectively, to make and publish the Award.
21. It is an established principle of statutory interpretation that any law which tends to affect a vested right of a citizen cannot be so construed as to take away the vested right. It is also a cardinal principle of construction of statutes, that every statute is construed to be prima facie prospective, unless it is expressly or by necessary implication read to have retrospective operation. Unless there are words in the statute which are sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only. It is needless to multiply authorities for supporting this canon of construction which is firmly embedded in our jurisprudence.
22. Despite this position in law which appears to be fairly certain to me, Mr. Cama argues with persistence that the position in law is different. He contends that the consequence of the amendment to section 2(a)(i) of the said Act carried out by Parliament was not to affect any vested right, but was merely a variation in the procedural rights. Procedural rights can be affected retrospectively, contends Mr. Cama, since no one has a vested right in any procedure or a forum.
23. Mr. Cama cited the judgment of the Supreme Court in T. Barai v. Henry Ah Hoe, in support of the contention canvassed by him. Here, the statute under interpretation was a penal statute and the issue before the Supreme Court was whether for an offence under the Prevention of Food Adulteration Act, 1954, the procedure and penalty provided under an unamended or amended statute would prevail. Under the unamended statute, the penalty was somewhat more rigorous than under the amended statute. The prosecution contended that the amendment could not affect the liability incurred prior to the amendment and that the punishment had to be imposed as provided in the unamended law. The Supreme Court rejected this argument by observing (Vide paragraph 17), "just as a person accused of a commission of offence has no right to trial by a particular Court or to a particular procedure, the prosecutor equally has no right to insist upon that the accused be subjected to an enhanced punishment under the repealed Act." It also pointed out that whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act, though it has not been specifically mentioned in the repealing Act or not, will follow, unless the section itself says so or a different intention appears. The Supreme Court pointed out in this decision that, unless the new legislature manifests an intention incompatible with or contrary to the provisions of the section, the principle in section 6 of the General Clauses Act would apply. After construing the section defining the penal offence under the amending statute, the Supreme Court was of the view that by the words used, and on their terms, the only consistent implication was that the act described in the section must be after the enactment had come into force and not prior thereto, in order to constitute the offence. In so far as the Central Act created new offences or enhanced punishment for a particular type of offence, no person could be convicted by such ex post facto law, nor could the enhanced punishment prescribed by the amendment be applicable, but in so far as the Central Amendment Act reduced the punishment for an offence punishable under section 16 of the Act, there was no reason why the accused should not have the benefit of such reduced punishment. The Supreme Court held, "the rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense." The principle is based both on sound reason and common sense." Finally, (vide paragraph 25), the Supreme Court held that it was settled law both on authority and principle that when a later statute again describes an offence created by an earlier statute and imposes a different punishment or varies the procedure, the earlier statute is repealed by implication. But the said rule is, however, subject to the limitation contained in Article 20(1) of the Constitution against ex post facto law providing for a greater punishment and has also no application where the offence described in the later Act is not the same as in the earlier Act i.e. when the essential ingredients of the two offences are different. Since the Central Amendment Act had dealt with the same offence as the one punishable under the unamended Act, but provided for reduced punishment, the Supreme Court took the view that the accused must have the benefit of the reduced punishment, but entered a note of caveat, namely, "We wish to make it clear that anything that we have said shall not be construed as giving to the Central Amendment Act a retrospective operation in so far as it creates new offences or provides for an enhanced punishment." It was in these peculiar circumstances and for reasons adumbrated, that the Supreme Court decided the case as aforesaid. In my view, this judgment does not support the proposition canvassed by Mr. Cama.
24. Mr. Cama then relied on the judgment of the Division Bench of this Court in Union of India & others v. Super Processors, (1993) I C.L.R. 457. This was a case under section 14-B of the Employees' Provident Funds & Miscellaneous Provisions Act, 1952, which empowers the levy of damages for defaults in depositing the provident fund under the provisions of the Act with the Provident Fund Commissioner. Prior to 1st November 1973, section 14-B merely provided that where an employer makes default in the payment of any contribution to the Fund, the appropriate Government could recover from the employer such damages not exceeding 25% of the amount of arrears as it may think fit to impose. This provision was amended from 1st November 1973 and a wider discretion was given to the appropriate authority in case of default to recover "such damages not exceeding the amount of arrears as it may think fit to impose." After the 1973 amendment of section 14-B, the Central Government had framed a table of damages to act as guidelines in the imposition of penalty. The guidelines came to be revised as a result of which flat rate of damages at 25% per annum subject to the ceiling of the actual amount in arrears, was leviable under the revised guidelines. The question which arose before the Court was whether imposition of damages under the revised guidelines, even though there was no variation in the maximum amount of damages to be levied under section 14-B, would amount to violation of Article 20(1) of the Constitution. The Court took the view that the substantive provision as to maximum levy of damages having remained unaltered despite several amendments to section 14-B of the Act, and since the latest guidelines were more rational, there was no reason why it should not be applied if the damages were required to be calculated afresh. I fail to see how this judgment helps the petitioner to advance its contention.
25. Mr. Cama then contended that section 6 of the General Clauses Act, 1897 would not apply if there is repeal of an Act followed by fresh enactment on the same subject. He relied on the judgment of the Supreme Court in Indira Sohanlal v. Custodian of Evacuee Property, in support of his contention. In the first place, it is factually incorrect to assume that the amending Ordinance No. 12 of 1995 in the Industrial Disputes (Amendment) Ordinance, 1995 amounted to repeal of section 2(a)(i) of the said Act followed by fresh legislation. These were simpliciter acts of amendment. Secondly, even the Supreme Court pointed out in (paragraph 10) of the judgment in Indira Sohanlal (supra) that "We cannot therefore subscribe to the broad proposition that section 6 General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable, in such cases also unless the new legislation manifests an intention imcompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law.....". Mr. Cama was unable to demonstrate that there is either such express or implied manifestation of an intention incompatible with or contrary to section 6 of the General Clauses Act, 1897 in the amending Industrial Disputes (Amendment) Ordinance, 1995 No. 12 of 1995 or the Industrial Disputes (Amendment) Act, 1996 No. 24 of 1996. I am afraid this judgment too does not help.
26. Mr. Cama then pressed into service the Supreme Court judgment in Bishambhar Nath v. State of U.P., . Even in this judgment, while dealing with section 6 of the General Clauses Act, 1897, the Supreme Court observes :
"But the rule contained in section 6 applies only if a different intention does not appear, and by enacting section 58(3) the Parliament has expressed a different intention, for whereas the General Clauses Act keeps alive the previous operation of the enactment repealed, and things done and duly suffered, the rights, privileges, obligations or liabilities acquired or incurred, and authorises the investigation, legal proceeding and remedies in respect of rights, privileges, obligations, liabilities, penalties, forfeiture and punishment, as if the repealing Act or Regulation had not been passed. Section 58(3) of 1950 directs that things done or actions taken in exercise of the power conferred by the repealed statutes shall be deemed to be done or taken under the repealing Act as if that latter Act were in force on the day on which such thing was done, or action was taken. The rule so enunciated makes a clear departure from the rule so enunciated in section 6 of the General Clauses Act, 1897 ....."
The Supreme Court also pointed out that in the earlier judgment in Sohanlal's case (supra), this position had been clarified by it.
27. Next Mr. Cama relied upon the judgment of the Supreme Court in Qudrat Ullah v. Bareilly Municipality, . The Supreme Court in paragraph 18 of this judgment has pointed out as under :--
"Certain propositions are clear regarding the consequence of repeal of a statute. The general principle is that an enactment which is repealed is to be treated, except as to transactions passed and closed, as if it had never existed. However, the operation of this principle is subject to any savings which may be made, expressly or by implication, by the repealing enactment (vide Halsbury's Laws of England, Vol. 36 paragraph 714)."
In the circumstances of the case, it was held that the interpretation sought to be given by it to the statute before it did not afford any foundation for the contention that the later Act was being applied retrospectively. This judgment can be of no avail to the learned Counsel.
28. Mr. Cama's reliance for support on the judgment of the Supreme Court in N.G. Mitra v. State of Bihar, , appears misplaced, as this judgment in terms points out (vide paragraph 5) :
"It is therefore clear that as a general rule the amended law relating to procedure operates retrospectively. But there is another equally important principle, viz., that a statute should not be so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time of amending Act came into force..... The same principle is embodied in section 6 of the General Clauses Act which is to the following effect ....."
Here, the Supreme Court took the view that the matter of investigation of a pending case before the Court was a procedural aspect and therefore the new procedure under the amended Act was correctly adopted. In my view, this judgment too does not help Mr. Cama.
29. Learned Counsel for the petitioner relied on the judgment of the Supreme Court in Moria Christine v. Maria Zuma, . Under clause (c) of the proviso to section 4 of the Central Act XXX of 1956, a provision was made somewhat similar to section 6(a) of the General Clauses Act, 1897 by which a proceeding in respect of a vested right like a right to appeal could be instituted, continued or enforced as if the repealing Act had not been passed. The Central Act XXX of 1965 extended the provisions of the Indian Civil Procedure Code to the Union Territories of Goa, Daman and Diu and the corresponding provisions of the Portuguese Code were repealed. A suit which was pending before the Comarca Court at Margao was continued by virtue of Goa Act XVI of 1965 and decreed by the corresponding Court of the Senior Civil Judge under the Civil Procedure Code. The Supreme Court held that, though the Central Act XXX of 1965 saved the remedy of legal proceeding in respect of a vested right, which it was open to the litigant to adopt notwithstanding the repeal, that provision had nothing to do with the forum where the legal remedial proceeding had to be pursued. If the repealing Act provided a new forum, where the remedy was a legal proceeding in respect of such vested right could be pursued after the repeal, that forum must be the one provided in the repealing Act. To the same effect is another judgment cited by the petitioner's Counsel in Lalitabai Banwarilal v. Dominion of India, A.I.R. 1954 Bombay 527. These two judgments only reiterate the well known principle that, while retrospectivity cannot be read into a statute which affects vested substantive rights, since no litigant can claim a right to institute proceedings in a particular forum, procedural rights could always be effected by a law, even though the cause of action had occurred earlier.
30. In State of Rajasthan v. Mangilal Pindwal, , the Supreme Court pointed out that the process of substitution of statutory provision consists of two steps first, the old Rule is made to cease to exist and next the new rule is brought into existence in its place. In other words, the substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. The repealed provision of the statute ceases to exist as from the date on which it is simultaneously replaced, but the repeal does not affect the provisions of the law which has been repealed during the period it was operative prior to the date of such repeal. The Supreme Court further laid down that the principle that on repeal a statute is obliterated is subject to the exception that it exists in respect of transactions past and closed by approving the principle laid down by it earlier in Qudrat Ullan's case (supra). The Supreme Court in this case also approved the principle laid down in Koteshwar Vittal Kamath v. K. Rangappa, .
31. In a recent judgment in R. Rajagopal Reddy v. Padmini Chandrasekharan, , the Supreme Court was concerned with the retrospective operation of the Benami Transactions (Prohibition) Act, 1988. The question was whether a suit already adjudicated prior to the coming into effect the provisions of the said Act could be carried in appeal and whether the appeal would be hit by the provisions of the said Act. Approving the observations made by the English Court in (Athlumney, Re), 1898(2) Q.B. 547, at pages 551, 552, as quoted in Maxwell on the Interpretation of Statutes, 12th Edn. (1969), the Supreme Court said :--
"Perhaps no rule' of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. The rule has, in fact, two aspects, for it, involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary."
32. The observations of Chief Justice S.R. Das, speaking for the Supreme Court, in Garikapati Veeraya v. N. Subbiah Choudhry, , are relevant. They are :
"The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed."
33. A conspectus of the authorities cited by the learned Counsel for the petitioner shows that that revolve around the accepted principle of statutory construction from Garikapati (supra) to Rajagopal Reddy (supra), as noticed above. The crucial question is, whether the amendment made in section 2(i) of the Industrial Disputes Act, 1947, by the Central Act No. 24 of 1996, adding the words "an air transport service or a Banking or an insurance company" amounts to a change in the substantive law or procedural law? Consequent to the amendment, the appropriate Government in respect of an industrial dispute arising in the petitioner concern changed from the State Government to the Central Government with effect from 11th October 1995. It is also true that, thereby, the State Government would have no jurisdiction to make a reference of an industrial dispute pertaining to the petitioner industry as from the said date. But, this, in my view is a matter which affects substantive rights, both of litigants as well as the State Government itself and cannot be treated as a mere situation in which the procedure or the forum has been substituted. I am unable to accept the contention of Mr. Cama that the consequence of the amendment corning into force was merely the substitution of the one forum by another and, therefore, all proceedings already pending before the State Labour Court had to come to an end. Had the amendment provided that all pending adjudication proceedings before the State Industrial Tribunal would automatically stand transferred to the Industrial Tribunal constituted by the Central Government, the proposition might have merited consideration. But, it is inconceivable that Parliament intended to drastically change the substantive law so as to take away the right of the litigant to carry to fruition the adjudication proceedings which had already been validly commenced and continued before the State Industrial Tribunal, without providing an alternative forum. Mr. Cama did not dispute that, if his contention is right, then the State Industrial Tribunal would have to dismiss the proceedings before it and the Central Government, which is now the appropriate Government, may not even make a reference-a case of double jeopardy for the unfortunate litigants ! In my judgment, this interpretation, far from avoiding the mischief, if any, under the old statute, introduces fresh mischief to the detriment of innocent parties. I am, therefore, unable to accept the contention so strenuously urged by Mr. Cama.
34. Mr. Anand Grover, learned Advocate appearing for the 1st respondent, drew my attention to a judgment in (ndian Oil Corporation v. Mahendrabhai R. Patel, 1987(54) F.L.R. 490, a decision of the Division Bench of Gujarat High Court. The Division Bench in this case placed reliance on the observations of the Supreme Court in the case of Workmen of M/s. Firestone Tyre and Rubber Co. of India Pvt. Ltd. v. The Management and others, 1973(26) F.L.R. 359, and pointed out that the Supreme Court in Firestone (supra) had held that industrial disputes referred to adjudication prior to coming of sic into force of section 11-A of the Industrial Disputes Act, 1947, would not be governed by the provisions of section 11-A. The Gujarat High Court pointed out that, likewise, a subsequent notification changing the appropriate Government in respect of a particular industry would not in any way affect the reference already made by the appropriate Government at the time of making such reference and that the Government which made the reference alone would have the jurisdiction and authority to publish the consequent Award under section 17 of the Act. Interpreting section 2(a) of the Act, the Division Bench of the Gujarat High Court pointed out, "Thus, it is clear that the appropriate Government' will be the Government which makes the reference of an industrial dispute for adjudication. The subsequent consequence that follows by such reference is relatable to the said appropriate Government which has referred the matter under section 10. The proceedings that is continued by virtue of such reference will have its logical end by passing an award and such an award to be published under section 17 has to be published by the 'appropriate Government' which referred the matter for adjudication." I respectfully agree with the observations of the learned Chief Justice of the Gujarat High Court in Indian Oil Corporation's case (supra). In my view, the legal position has been aptly and precisely laid down by the Division Bench of the Gujarat High Court. I therefore, hold that, despite the amendment brought into force from 11th October 1995, the industrial dispute which had been adjudicated by the Labour Court on a reference made by the State Government would continue to be valid and the State Government would have the authority to publish such an Award under section 17 of the Act. Consequently, the Award published by the State Government under section 17 is perfectly legal and valid.
(ii) Whether the termination of service amounts to retrenchment.
35. This issue has already been answered by the Labour Court in favour of the petitioner as the Labour Court has recorded a finding that the order of termination of the 1st respondent's service was punitive and attached stigma on the career to the workman. The Labour Court accepted the petitioner's contention that the termination of service was punitive, but proceeded to conclude that the petitioner was unable to establish that there was any actual misconduct by the 1st respondent as alleged, despite opportunity to lead evidence during the trial before the Labour Court. The Labour Court has also concluded that the order of termination of service was mala fide and amounted to victimisation of the 1st respondent as she protested against her continued sexual harassment by her superior officer Bahrani.
(iii) Whether the termination of first respondent's service was in contravention of section 66 of the Bombay Shops and Establishments Act. 1948 and against the provisions of section 25 of the Industrial Disputes Act. 1947 ?
36. The Labour Court has answered the additional issues which the petitioner, under the order of this Court, was permitted to raise, in the following manner :--
" 1 (a) Whether the workman was given an opportunity to be heard on the charge-sheet and/or in fair and proper domestic enquiry?
(b) If not whether the employer proves before me that the work man had committed misconduct/s mentioned in letter dated 24th July 1985 ?
(c) Whether the termination is disproportionate to the misconduct proved ?
Findings 1 (a) No.
(b) No.
(c) Does not arise as the misconducts have not proved against the workman."
37. In my view, Mr. Cama's contention is right. Inasmuch as the Labour Court has come to the conclusion that the termination of the 1st respondent's service was a misconduct, there was no question of compliance with section 66(A) of the Bombay Shops and Establishments Act by giving thirty days' notice or wages in lieu of notice, since the proviso to section 66 of the Bombay Shops and Establishments Act, 1948, specifically excludes cases where the services of an employee are dispensed with for a misconduct. The fact that the petitioner succeeds in this contention does not, however, render the Award of the Labour Court liable to be set aside, for it is supportable on more substantial and overwhelming grounds.
(iv) Whether the Award is perverse ?
38. This is the weakest of the contentions urged by Mr. Cama. Mr. Cama took me through the factual findings recorded by the Labour Court after a full-fledged trial and attempted to persuade me that the factual findings are perverse. Perversity in findings can arise only if (a) there is no evidence whatsoever to support the finding, or (b) the conclusions recorded are diametrically contrary to the evidence on record or (c) that the conclusions are such that no reasonable person would have arrived at. Judged by any of these three tests, it is not possible to accept the contention of the petitioner that the conclusions recorded by the Labour Court are perverse. There was more than adequate evidence before the Labour Court to support its conclusions. It is not for this Court to sit in appeal over the conclusions recorded by the Labour Court in exercise of its jurisdiction, nor is it open to this Court in writ jurisdiction to examine whether the evidence was adequate or inadequate to support such conclusions. Even assuming that it may be possible to take another conclusion on the evidence before the Labour Court, it is not for this Court to substitute its conclusions for those of the Labour Court, while exercising writ jurisdiction.
39. The contention of the petitioner that the factual conclusions recorded by the Labour Court are perverse is rejected.
40. An overall view of the case before the Labour Court brings out that the 1st respondent, a lady, was subjected to continuous sexual harassment by her official superior Bahrani. The 1st respondent protested vigorously and complained to higher officers. This resulted in an "operation scuttle". First, the 1st respondent was threatened that her husband's employment in Saudi Arabia would be terminated by using the petitioner's influence with the Saudi Arabian Government. Second, she was forced to give an apology. Third, when the sexual harassment continued and the 1st respondent once again took up the matter with the highest authorities in the petitioner Company, the petitioner decided to summarily terminate the services of the 1st respondent by putting forth concocted and baseless reasons and carried it into effect. In these circumstances, the 1st respondent has been victimised for her refusing to submit herself to the sexual demands of her superior. The conduct of Bahrani would squarely fit in with the concept of "sexual harassment" as defined by the Supreme Court in the case of Vishaka and others v. State of Rajasthan, In my judgment, the conclusions recorded by the Labour Court in its impugned Award and the final order made by it in its Award are both unexceptionable and they have to be upheld.
41. In the premises, I find no substance in this writ petition. Writ petition is hereby dismissed. Rule discharged. The petitioner to pay a sum of Rs. 10,000/- (Rupees Ten thousand only) as costs to the 1st respondent.
Rule discharged.