Bombay High Court
Manoj Shankar Salvi vs Special Steels Ltd. And Ors. on 25 July, 2000
Equivalent citations: [2000(87)FLR1008], (2001)IIILLJ659BOM
Author: S.S. Nijjar
Bench: S.S. Nijjar
ORDER S.S. Nijjar, J.
1. Misconduct not proved, can reinstatement be denied to the workman? This is the significant question of law which arises in this Writ Petition under Article 226 of the Constitution of India.
Relevant facts
2. The Petitioner was appointed as a Helper with the first Respondent Company on January 7, 1991. After successfully completing the probationary period he was confirmed as a permanent employee. The Petitioner claims that throughout his service record was good. On June 12, 1995 the management signed a settlement with the Trade Union known as Shramik Utkarsha Sabha. According to the Petitioner, this settlement was not liked by majority of the workmen. Majority of employees left Shramik Utkarsha Sabha and joined another union viz. Bhartiya Kamgar Karmachari Mahasangh (hereinafter referred to as "the Mahasangh"). Petitioner was one of the founder members of the said Mahasangh in the first Respondent's establishment. According to the Petitioner, the formation of the Sangh was not liked by the Management. On false pretexts the management began initiating disciplinary proceedings against various employees. In particular, they singled out those who played a leading part in enrolling members in the newly formed Mahasangh as well as those who were active in the formation of the same. The Petitioner was charge-sheeted on January 30, 1996. The main allegation was that after receiving the benefits under the settlement dated June 12, 1995, the persons charge-sheeted had not been implementing the terms of the settlement, The relevant part of the charge-sheet is as under:
"You along with Mr. P.T. More and Mr. G.N. Gawde forced Mr. R.R. Shukla to stop Machine Nos. 131/132. As Mr. R.R. Shukla did not stop the machine, you yourself along with Mr. P.T. More and G.N. Gawde threatened him and forcibly stopped the said machine.
On January 28, 1996, Mr. R.R. Shukla, Token No. 3195 was in the 1st shift commencing at 6.45 a.m. After completing his shift, when he went to his residence, which is situated opposite to the company's premises, at about 7.30 p.m. while Mr. R.R. Shukla was attending one meeting of Utkarsha Seva Mandal, you conspired to beat Mr. R.R. Shukla because he has been implementing the Manning practices and was not agreeing to your instructions for not implementing the Manning Practices.
For that purpose, you along with Mr. P.T. More and Mr. G.N. Gawde hired two goondas and all of you along with goondas assembled near Utkarsha Seva Mandal Hall in which Mr. R.R. Shukla was attending the said meeting. You sent one goonda inside the hall to summon Mr. R.R. Shukla and accordingly, he called Mr. Shukla outside the said hall.
When Mr. R.R. Shukla came out, the goondas started uttering.
In the meanwhile, you instructed the goondas to beat Mr. R.R. Shukla and you yourself also started beating Mr. R.R. Shukla along with the goondas. All of you warned Mr. R.R. Shukla that if he again dared to implement the terms of Settlement, he will be finished. As a result of this severe beating Mr. R.R. Shukla was injured and was treated at Bhagwati Hospital."
On the basis of the aforesaid allegations, the Petitioner along with the other two persons were said to have indulged in riotous, disorderly order, indecent behaviour etc. etc. commission of an act subversive of good behaviour within or outside the establishment, wilful interference with the work of other workman. On receipt of the charge-sheet, the Petitioner requested for certain documents in order to prepare his reply. Since the management did not supply the documents, the Petitioner did not give any reply. This request for document was made by letter dated February 5, 1996. On February 15, 1996 the management initiated a Departmental Enquiry. The Petitioner along with his defence representative attended the enquiry on various dates upto February 28, 1996. On March 6, 1996 though the Petitioner was absent his defence representative was present. Thereafter the Petitioner was not intimated the date of the enquiry in advance. The Petitioner was informed of the date of the enquiry by letters received subsequent to the date of the enquiry. Thus the Petitioner was effectively prevented from attending the enquiry and from giving any evidence in support of his case. The enquiry, therefore, was conducted ex parte on April 8, 1996 in utter disregard of the principles of natural justice. In May 1996 the management sent the findings of the enquiry officer to the Petitioner and he was given 48 hours to submit his reply to the findings of the enquiry officer. By his letter dated May 23, 1996, the Petitioner requested the management for 15 days time to submit his reply. Management did not accede to this request of the Petitioner. On May 27, 1996 the Petitioner was discharged from service. The Petitioner was compelled to file complaint (ULP) No. 290 of 1996 in the Labour Court at Mumbai for a declaration to the effect that the management had engaged in unfair labour practices and praying for an order quashing and setting aside the discharge order dated May 27, 1996. The Petitioner also filed an application for interim relief. Management filed reply to the interim application as well as a written statement in reply to the complaint. It was the case of the management that the enquiry had been conducted fairly and that the Petitioner was given a proper opportunity to defend himself. The management even sought to rely on a charge-sheet dated January 2, 1996 which was never issued to the Petitioner and in respect of which no action was ever initiated against him. On August 14, 1998 the Labour Court rejected the complaint of the Petitioner. The Labour Court declared that the enquiry was fair and proper and that the findings of the Enquiry Officer were not perverse. Aggrieved against the order of the Labour Court, the Petitioner filed a Revision Application before the Industrial Court on December 9, 1998. The Revision Application was also dismissed. Both the aforesaid orders were challenged by the Petitioner in Writ Petition No. 1615 of 1999. This Writ Petition was disposed of on July 12, 1999 by passing the following order:
"Heard the learned counsel for the Parties. By consent the impugned order dated August 14, 1998 passed by the Labour Court is set aside. Issue Nos. 1 and 2 relating to fairness and propriety of enquiry and perversity of order of Enquiry Officer are answered in favour of workman and the matter is remitted back to the Labour Court to enable the company to lead evidence before the Labour Court to prove charge of misconduct.
Petition is disposed of.
Parties to act on the ordinary copy of this order duly authenticated by the Court Associate."
Inspite of having suffered the aforesaid order of the High Court, the management chose not to lead any evidence before the Labour Court. The Petitioner nevertheless gave evidence and was cross- examined by the counsel for the management. Again the matter was decided by the Labour Court by its order dated December 21, 1999. The findings returned by the Labour Court on the various issues are as follows:
Issues Findings
1.
Do the Respondent Company prove the misconducts levelled against the Complainant before the Court ?
No
2. Does the complainant prove that the Respondents have committed an unfair labour practice as per Item 1(a), (b), (c) and (d) to Schedule IV of the Act, 1971 ?
Not proved Item 1(a), (b), (c) and (d). But Yes as per order passed below. See Item 1(f) to Schedule IV.
3. Does the complainant lastly prove that he is entitled to reinstatement with continuity of service along with full back wages ?
Yes as per final order passed below.
This order of the Labour Court was again challenged by the Petitioner by way of a Revision Application before the Industrial Court at Bombay. By its order dated February 24, 2000, the Industrial Court dismissed the Revision Application. The Labour Court in its order has declined reinstatement to the Petitioner and granted 75% back wages as compensation in lieu of reinstatement and loss of future employment. This direction of the Labour Court has been confirmed by the Industrial Court. Hence the present Writ Petition.
3. I have heard the learned counsel for the parties at length. I find much substance in the submissions made by Mr. C.U. Singh, counsel for the Petitioner, to the effect that once the management has failed to prove the misconduct, both the Courts below ought to have ordered reinstatement of the workman. It is by now settled by a catena of judgments of the Supreme Court that if the order of dismissal is found to be illegal or void, the natural consequence is reinstatement of the workman in the services with full back wages. Reinstatement can be refused in exceptional circumstances which make it impossible for the employer and the workman to continue with the relationship of employer and employee. This view of mine is buttressed by a judgment, of the Supreme Court in the case of Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, . In this case the question of relief to be granted to the workman when the order of termination is declared illegal has been answered by the Supreme Court in the following terms.
"6. Semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions. "Void ab inito", 'invalid and inoperative' or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the order of termination of the services of the workmen. Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there my be exceptional circumstances which make it impossible or wholly inequitable vis- a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums, the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages when that would place an impossible burden on the employer. In such and other exceptional cases, the Court may mould the relief but, ordinarily the relief to be awarded must be reinstatement with full back wages."
Inspite of the law having been clearly laid down the Labour Court failed to follow it in the present case. A perusal of the Award passed by the Labour Court would show that there are no exceptional circumstances pleaded by the management. In fact, the management has not protested even, to a limited extent that it would be an anomalous situation if the Petitioner is reinstated. In fact, whilst giving reasons for the decision on issue No. 1, the Labour Court has come to the conclusion that the management has utterly failed to discharge the onus to prove the issue. Yet whilst deciding issue No. 2, the reasoning adopted by the Labour Court is wholly unsatisfactory. The Labour Court has held that unfair labour practices under Items 1(a), (b), (c) and (d) of Schedule IV of the MRTU and PULP Act, hereinafter referred to as 'the Act', are not proved. On the other hand it is held that unfair labour practice under item 1(f) of Schedule IV of the Act is indirectly proved as the High Court had already held in its order dated July 12, 1999 in Writ Petition No. 1615 of 1999 that the enquiry conducted against the Petitioner was not fair and proper. To say the least, the attitude of the Labour Court seems to suggest that even though the management has failed to lead any evidence to prove the misconduct, yet the finding that the unfair labour practice under item 1(f) of Schedule IV of the Act is proved, is grudgingly given. Whatever be the reasons given by the Labour Court, the fact of the matter remains that unfair labour practice has been proved. Having held the management guilty of unfair labour practice and having held that the Petitioner is entitled to reinstatement, there was no justification before the Labour Court to deny the relief to the Petitioner. In order to deny the relief of reinstatement to the Petitioner, the Labour Court, with some distorted process of reasoning, has come to the conclusion that the relations between the Petitioner and the management have been proved to be strained. The management had not led any evidence either to prove the misconduct or to prove that the relations between the Petitioner and the management are strained. In fact, the Petitioner stepped into the witness box and gave evidence. In the cross examination, on the suggestion of the counsel for the management, he stated as follows:
"It is correct to say that my relations with the management when I was in the employment were cordial .... So also my relations with other workers were also cordial too."
This answer is obviously given by the Petitioner, on the suggestion by the advocate for the management, that the relations between the Petitioner and the management are cordial. Yet the Labour Court holds that the relations between the Petitioner and the management are strained. The Labour Court further holds that in view of the fact that the Petitioner had already received the benefits of the settlement, the unfair labour practices under items 1(a), (b), (c) and (d) of Schedule IV of the Act have not been proved. I am unable to uphold the decision of the Labour Court. It was for the management to show that the relationships between the Petitioner and the management were strained. No material whatsoever was placed on the record before the Labour Court. Yet the Labour Court gave a finding that the relationships are strained. The only available evidence indicates that the relations were actually cordial . Surprisingly the Labour Court refers to the leading decisions of the Supreme Court laying down the law that on the termination being found to be illegal, generally reinstatement follows with back wages. Yet, having noticed the judgments, the Labour Court denies the relief of reinstatement without any rhyme or reason. The Labour Court comes to the conclusion that items 1(a), (b), and (d) of Schedule IV of the Act have not been proved on the solitary circumstance that the Petitioner has accepted the benefit under the settlement. The victimization of the Petitioner has to be seen in relation to the action taken by the management in discharging the Petitioner. It may be that item No. 1 (c) of Schedule IV of the Act may not be applicable as the Petitioner has not been implicated in a criminal case. But there is no escape from the fact that item Nos. 1(a), (b) and (d) of Schedule IV of the Act are proved. The High Court in the earlier Writ Petition No. 1615 of 1999 has held that the enquiry was not fair and proper. This finding has been further reinforced by the fact that the management did not avail of the opportunity to lead the evidence to prove the misconduct. Once the Petitioner has been discharged without holding a fair and proper enquiry, it would lead to the natural conclusion that the action has not been taken in good faith but in colourable exercise of the employer's rights. This in turn would mean that the action is by way of victimization. In my view, the action is not taken in good faith. It has been taken for patently false reasons. In the face of this, it is inconceivable that the Labour Court would have come to the conclusion that item Nos. 1(a), (b) and (d) of Schedule IV of the Act have not been proved. There is another very cogent reason which would clearly show that the Petitioner has been victimized and has been discriminated against him. More and Gawde, who had been charge-sheeted along with the Petitioner for the same misconduct have been reinstated in service. A distinction is sought to be made on behalf of the management by Mr. Kuldeep Singh to the effect that Petitioner had actually assaulted the alleged victim whereas More and Gawde had not assaulted. This argument has to be stated only to be rejected. There is no evidence on the record to the effect that the Petitioner had assaulted the alleged victim. The management was given an opportunity to prove the misconduct of the Petitioner. The enquiry has been held to be not fair and proper by this Court. Yet the management failed to prove the misconduct. Therefore, the submission made on behalf of the management is completely in the air. It is also sought to be argued by Mr. Kuldeep Singh that More had apologized at the initial stage itself. In the case of Gawde, he has been reinstated again on the basis of his apology. I do not find much force in the submission of Mr. Kuldeep Singh to the effect that there is a distinction between the case of More and Gawde on the one hand and the Petitioner on the other. In fact the very same Labour Court has given a judgment in favour of Gawde. In that case the Labour Court has given the following finding:
Issues Findings
1.
Do the Respondents prove the charges of misconduct againest the second complainant Shri G.N. Gawde before the Court ?
Yes, partly
2. Does the Complainant No.2 prove that the Respondant Company has committed an unfair labour practices as against him as per item 1(a), (b), (c) and (d) of the Act ?
Yes, as per order passed below it; Item 1(a), (d) of schedule IV of the Act, 1971.
3. Does he lastly prove that the complainant No 2 is entitled to reinstatement with continuity of services along with full back wages ?
Yes as per order passed below.
4. What Order?
A perusal of this shows that misconduct of Gawde has been partly proved and yet the Labour Court ordered reinstatement. On the same set of facts the Labour Court found that the management had committed unfair labour practice under Items 1(a) and 1(d) of Schedule IV of the Act. The Labour Court also found that Gawde was entitled to reinstatement. The very same reasoning was however thrown to the winds when it came to the case of the Petitioner. This, in my opinion, renders the award given by the Labour Court wholly arbitrary and without any justification. A Division Bench of this Court in the case of Ms. C. Pinto v. Prahladrai Dalmia and Sons and Ors. 1987 I CLR 422 set aside the award of the Labour Court where reinstatement had been denied on the ground that the workman therein had not shown that she had made any efforts to get employment after her services were terminated and that her behaviour with her colleagues was rude and indecent. The Division Bench set aside the award with the following observations:
"Now, the reasons given by the learned Labour Judge for not granting reinstatement and back wages to the Petitioner are totally perverse and in flagrant violation of the principles of labour law. These can certainly not be the reasons for denying reinstatement and back wages to any employee. It may be noted here that none of the colleagues of the Petitioner with whom she was alleged to have indecently and rudely behaved were examined in the Labour Court. Once having come to the conclusion that the services of the Petitioner were illegally terminated, the learned Labour Judge should have granted reinstatement unless there were compelling reasons for not doing so which we do not find in this case. Again, once the Petitioner established that she was unemployed during the intervening period, she should also have been granted full back wages.
The impugned award made by the learned Labour Judge is thus illegal."
In the present case admittedly the so-called victim of the assault did not even appear as a witness before the Labour Court. Yet whilst he was giving evidence in the complaint which has been filed by Gawde, the same victim came forward and gave evidence. In spite of that evidence, the Labour Court held that Gawde was entitled to reinstatement. On the other hand in the present case when there is not an iota of evidence from any quarter in favour of management, reinstatement has been denied. The reasoning of the Labour Court is clearly perverse and cannot be upheld.
4. Mr. Kuldeep Singh had cited a number of authorities in support of the proposition that reinstatement is not an absolute rule. I entirely agree with the submission made by the learned counsel and therefore, it is not necessary to consider these authorities save that they can be listed seriatim.
Amravati District Central Co- operative Bank Ltd., Amravati and Shamrao Tanbaji Ladavikar and Ors. 1982 II LLN 182. Ram Naresh Tripati v. S.D. Rane and Ors. 1992-II-LLJ-519 (Bom), Orissa Mining Corporation and Anr. v. Ananda Chandra Prusty 1998- III-LLJ (Suppl)-1207 (SC) and Canara Bank v. Union of India (Ministry of Labour) and Ors. 1998-II-LLJ-511(All).
5. The reasoning adopted by the Industrial Court is equally unsupportable and cannot be accepted. As noticed earlier, this Court in Writ PetitionNo. 1615 of 1999 has held the domestic enquiry to be not fair and proper. The Industrial Court relies on the findings given by the enquiry officer which has been set aside by this Court. Mr. Kuldeep Singh has very fairly stated that he does not support the reasoning given by the Industrial Court. He, however, states that the ultimate finding given by the Industrial Court is correct. I am unable to agree with the submission of the learned counsel. The findings of the enquiry officer having been set aside by this Court could not be made the basis of any observations made by the Industrial Court. Having been set aside these findings were wholly extraneous to the proceedings before the Labour Court or the Industrial Court. In my view, the order passed by the Industrial Court is unjustified and unsupportable.
6. Mr. Kuldeep Singh sought to make a distinction between the unfair labour practice enumerated in Item 1(f) of Schedule IV of the Act and the other unfair labour practices. According to the learned counsel, even a declaration by the Labour Court that the employer has indulged in unfair labour practice under item 1(f) of Schedule IV of the Act does not entitle the employee straightaway to the relief of reinstatement with continuity of service and back wages. It simply deprives the employer benefit of domestic enquiry and nothing more, because no affirmative action as contemplated under Section 30(b) of the Act can be taken. He submitted that unfair labour practice under Item 1(f) can only lead to a declaration to the effect that the enquiry is not just and fair. Thereafter the management is permitted to lead evidence to prove the misconduct independently in the Court. Therefore, merely because the Court finds that the enquiry is not fair and proper would not amount to commission of unfair labour practice under items 1(a) (b) and (d) of Schedule IV of the Act. I am unable to agree with the submission of the learned counsel. The unfair labour practice has been defined in Sub-section (16) of Section 3 the Act as follows:
"3(16). 'unfair labour practices' means unfair labour practices as defined in Section 26."
Section 26 of the Act in turn provides as follows:
"26. Unfair labour practices: In this Act, unless the context requires otherwise, unfair labour practices means any of the practices listed in Schedules II, III and IV."
A perusal of the aforesaid Sections makes it abundantly clear that there is no distinction between any of the items which are defined in Schedule IV of the Act. As noticed in the earlier part of the judgment, if the Labour Court finds that the enquiry has been conducted in breach of rules of natural justice, the employer should be given an opportunity to lead evidence and prove the misconduct of the workman. If even after leading the evidence the Labour Court comes to the conclusion that the misconduct is not proved, then the commission of unfair labour practice under Item 1(f) of Schedule IV of the Act is proved. At that stage the unfair labour practice under item 1(f) of Schedule IV of the Act would be at par with the other unfair labour practices enumerated in the Act. Once it is established that the misconduct is not proved, the action of the management would be insupportable in law. Item 1(a) to (f) of Schedule IV of the Act are enacted to ensure that the employers do not act in a high-handed, arbitrary and capricious manner whilst discharging or dismissing the employees. Acting in breach of rule of natural justice would certainly fall within the principle that the action has not been taken in good faith and is colourable exercise of the employer's rights. I am of the considered opinion that once it is held by a Court that the management, has committed an unfair labour practice under item 1(f) of Schedule IV of the Act, it would be safe to say that the workman has been victimized. I am unable to accept the submission of Mr. Kuldeep Singh that item 1(f) of Schedule IV of the Act would only amount to an unfair labour practice in the form of victimization or colourable exercise if the enquiry had been conducted in utter disregard of the principles of natural justice. He submitted that utter disregard would mean that the employer has not conducted any enquiry or has conducted the enquiry in such a manner which would in fact amount to no enquiry at all. In my view, rules of natural justice cannot be put in such a straight jacket. The purpose of the principles/rules of natural justice is to ensure that before any disciplinary action is taken against a workman, he is given a fair opportunity to put forward his case. A perusal of the facts which have been narrated in this case would clearly show that the management had not acted fairly. This Court had already in Writ Petition No. 1 & 15 of 1999 held that the enquiry was not fair and proper. In such circumstances I am of the considered opinion that the management had clearly committed unfair labour practices as enumerated under item 1(a), (b), (d) and (f) of Schedule IV of the Act.
7. In view of the above, I am of the considered opinion that the Petitioner was clearly entitled to reinstatement with full back wages. The petition is allowed with costs. Costs Rs. 5,000/-. The impugned orders are hereby quashed and set aside. The Petitioner is directed to be reinstated in service forthwith. The management to comply with the order within a period of four weeks from today.
8. Certified Copy expedited.