Gujarat High Court
Rohit N Vasawada vs Indian Farmers Fertilizer Co-Op. Ltd on 3 March, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/10217/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10217 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY
================================================================
1 Whether Reporters of Local Papers may be allowed to see YES
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 as NO
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO
================================================================
ROHIT N VASAWADA ....Petitioner
Versus
INDIAN FARMERS FERTILIZER CO-OP. LTD.
& Another ....Respondents
================================================================
Appearance:
MR. B.R. GUPTA, ADVOCATE for the Petitioner
MR. K.M. PATEL, SENIOR ADVOCATE WITH
MR. VARUN K.PATEL, ADVOCATE for the Respondent No.1
RULE SERVED for the Respondent No. 2
================================================================
Page 1 of 12
C/SCA/10217/2013 CAV JUDGMENT
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 03/03/2014
CAV JUDGMENT
1. Challenge in this petition is made by the workman to the award of the Labour Court, Kalol (North Gujarat) in Reference (LCK) No.263 of 1993 dated 04.04.2013, whereby the Reference is rejected. The petitioner was terminated by the respondent No.1 for proved misconduct and challenged thereto was the subject matter of the Reference. The Labour Court has held the action of the employer to be legal.
2. The Labour Court had, even then directed the employer to pay lump-sum compensation of Rs.1,50,000/- and terminal benefits to the workman from the date of termination i.e. dated 11.06.1984, till the date of his notional retirement i.e. 17.09.1997. The employer accepted the said award and discharged its obligation flowing from it and paid Rs.1,50,000/- as compensation, and Rs.13,441/- towards other dues, as directed. After having received the said amount, it is the workman, who has challenged the legality and validity of the said award, in this petition.
3. Heard Mr.B.R.Gupta, learned advocate for the petitioner - workman and Mr.K.M.Patel, learned senior advocate with Mr.Varun Patel, learned advocate for the respondent No.1- the employer.
4. Learned advocate for the petitioner has made the following submissions.
Page 2 of 12 C/SCA/10217/2013 CAV JUDGMENT4.1 Learned advocate for the petitioner has, at the outset submitted that, no opportunity of hearing was given by the Labour Court to the petitioner and the award of the Labour Court is ex-facie self-contradictory and therefore the matter be remanded to the Labour Court for fresh adjudication.
4.2 Without prejudice to the above, learned advocate for the petitioner has further contended that, no opportunity was given by the employer before terminating the service, and on challenge, even the Labour Court also did not give reasonable opportunity. It is therefore contended that, the termination order, which was the subject matter of challenge before the Labour Court, suffered from the vice of violation of principles of natural justice, and the Labour Court also, in the adjudicating process, repeated the same mistake and therefore the impugned award of the Labour Court, as well as the termination order, both be quashed and set aside.
4.3 It is next contended that, in the award, there are contradictions in terms. On one hand, vide order dated 10.10.2012, it was held that, the inquiry conducted by the employer against the petitioner was illegal, and the same Presiding Officer, vide final award dated 04.04.2013 upheld the action of the Management of terminating the services of the petitioner. It is further submitted that, even while passing the award dated 04.04.2013, the Labour Court, on one hand has upheld the action of the employer of terminating the service of the petitioner, and at the same time has awarded compensation of Rs.1,50,000/-. This, according to the petitioner, is also contradiction in the award in question.
Page 3 of 12 C/SCA/10217/2013 CAV JUDGMENT4.4 It is next contended that, the action of the Management of terminating the service of the petitioner was without authority of law. In this regard, it is submitted that, as per Clause 24 of the Model Standing Orders, under The Bombay Industrial Employment (Standing Orders) Rules, 1959 (as applicable in the State of Gujarat), the petitioner workman, at the worst, could have been, either warned, censured or fined, since the charge against him was remaining absent without leave, without sufficient cause and therefore the action of terminating his service was beyond the powers vested in the employer. In this regard, reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of S.R.Tewari Vs. Union of India reported in (2013) 6 SCC 602.
4.5 It is therefore submitted that the impugned award of the Labour Court, as well as the termination order, both be quashed and set aside.
4.6 Learned advocate for the petitioner has also raised the dispute with regard to the retirement age that it ought to have been considered as 60 years and not 58 years.
5. On the other hand, learned Senior Advocate for the Respondent No.1 - employer has made the following submissions.
5.1 Responding to the first submission of learned advocate for the petitioner regarding remanding the matter to the Labour Court for fresh adjudication, it is submitted by learned advocate for the respondent that, firstly, there is no illegality Page 4 of 12 C/SCA/10217/2013 CAV JUDGMENT or contradiction in the award passed by the Labour Court and therefore there is no reason to remand the matter. Further, for that purpose, the impugned award will have to be quashed and set aside which would also mean that the employer was not under legal obligation to pay the amount of Rs.1,50,000/- and Rs.13,441/- which he has already paid to the petitioner. It is therefore submitted that, that amount should first be deposited back by the petitioner and only then the matter can consider for being remanded to the Labour Court. In this regard, reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Sanat Kumar Dwivedi versus Dhar Jila Sahakari Bhoomi Vikas Bank Maryadit and others reported in 2001 Lab.I.C. 2373.
5.2 It is next submitted that, there is no contradiction in the award of the Labour Court, as perceived by the petitioner.
5.3 That the action of the Management was well within its powers, and was strictly in accordance with the Model Standing Orders.
5.4 That the dispute with regard to the retirement age is non existent and in any case is not well founded.
5.5 Attention of the Court is also invited to the order passed by the Labour Court dated 18.05.2000 on Misc. Civil Application No.8 of 2000 for restoration of this very Reference. The copy of the said order was also given to learned advocate by the petitioner.
6. Before the rival contentions are examined on merits, Page 5 of 12 C/SCA/10217/2013 CAV JUDGMENT firstly it has to be decided as to whether, the matter is to be remanded to the Labour Court, as suggested on behalf of the petitioner. In this regard, it is recorded that, learned advocate for the petitioner, after taking instructions from the petitioner has submitted that, the petitioner is aged about 75 years and he has spent the amount, which he had received pursuant to the impugned award and therefore he would not be able to pay back that amount, and it is submitted that, the request to remand the matter to the Labour Court be accepted without insisting for refunding the said amount.
6.1 Having heard learned advocates for the respective parties on this preliminary contention, it is recorded that, firstly this Court does not find any reason to remand the matter to the Labour Court and it has to be adjudicated considering the contentions recorded hereinabove, and in any case, the petitioner cannot be heard to contend that, at his request the award be quashed and set aside, but the benefits which he has derived from the said award, be permitted to be retained by him. The suggestion of the petitioner of remanding the matter, under these circumstances, cannot be and is not accepted. The petition is therefore required to be decided on merits.
7. Having heard learned advocates for the respective parties and having gone through the material on record, before the rival contentions are dealt with, the following aspects need to be recorded.
7.1 The petitioner was served with charge-sheet, as reflected in the impugned award, which reads as under.
Page 6 of 12 C/SCA/10217/2013 CAV JUDGMENT" Date:14 Dec., 1983 While remaining in employment in the Society, you absented unauthorisedly for the number of days as mentioned below during 1983.
Month No. of days Month No.of days
January 6 July 16 ½
February 22 ½ August 28
March 12 ½ September 29
April 11 ½ October 6
May 12 November 30
June 20
December (upto
8
8.12.83)
84 ½ 117 ½
Total : 84 ½ + 117 ½ = 202 days.
Your above acts amounts to misconduct under the provision of the Model Standing Order - Clause No.22(f) as applicable to you. The extract of the clause is mentioned below: ...."
7.2 Reference may be made to Clauses 22(f), 23 and 24(a), of the Model Standing Orders, which read under.
"22. Any of the following acts or omissions on the part of workman shall amount to misconduct
(a) .....
(f) habitual absence without leave or absence without leave for more then ten consecutive days or overstaying the Page 7 of 12 C/SCA/10217/2013 CAV JUDGMENT sanctioned leave without sufficient grounds or proper or satisfactory explanation
23. (1) A workman guilty of misconduct may be,
(a) warned or censured, or
(b) fined subject to and in accordance with the provisions of the Payment of Wages Act, 1936, or
(c) suspended by an order in writing signed by the Manager for a period not exceeding four days, or
(d) punished by way of withholding of increment or promotion (including stoppage of increment at an efficiency bar) or
(e) reduced to a lower post or time scale or to a lower stage in a time scale ; or
(f) discharged under order 21;
(g) dismissed without notice.
24. A workman may be warned, censured or fined for any of the following acts and omissions :
(a) absence without leave without sufficient cause, **** "
8. On conjoint reading of the above, this Court finds that, what was alleged against the petitioner was not mere absence without leave without sufficient cause, but committing misconduct under Clause 22(f). In the charge-sheet also, specific reference was made to Clause 24(f), and the contents thereof which is quoted above, clearly demonstrates that, it was a case of habitual absentism, amounting to misconduct and it can not be termed as mere omission. Under these Page 8 of 12 C/SCA/10217/2013 CAV JUDGMENT circumstances, this Court finds that, there is no illegality in the action of the employer of classifying such misconduct of petitioner under Clause 22(f). Having held so, no illegality can be found in the consequence thereof to follow under Clause 23, which is quoted above, which also included termination and dismissal. Under these circumstances, the bone contention of the petitioner that the action of the respondent No.1 employer was without authority of law, is rejected. The reliance placed by the learned advocate for the petitioner on the decision of Hon'ble the Supreme Court of India in case of S.R.Tewari (supra) will not help the petitioner in the facts of this case.
9. After having held as above, the question remains of procedure. So far the procedural aspect is concerned, the Labour Court had, vide order dated 10.10.2012 held that the procedure followed by the employer was illegal. Consequence thereof could not be, that there was no misconduct, and it was open to the employer to satisfy the Labour Court by adducing evidence that the action of the employer against the workman was legal. This was so permitted by the Labour Court in this case. The employer had produced original record before the Labour Court and it is reflected in the impugned award that, employer was also ready to give inspection to the workman of the original muster roll, if he so desired. Under these circumstances, it is not that there was no material, or that it is not taken into consideration by the Labour Court, with regard to the absentism of the workman in the year 1983 for more than 200 days, spread over all 12 months. The Labour Court has in the facts of this case, recorded its satisfaction and has upheld the action of the employer. This Court does not find any infirmity in the procedure adopted or the satisfaction recorded Page 9 of 12 C/SCA/10217/2013 CAV JUDGMENT by the Labour Court. Under these circumstances, the contention of the petitioner that there was procedural irregularity in the impugned action, is not well founded and is rejected. Having held so, other contentions of the petitioner would pale into insignificance, however, the same are gone into with the following observations.
10. So far not providing sufficient opportunity by the Labour Court is concerned, it needs to be recorded that there is sufficient material to suggest that the petitioner was interested less in adjudication of his grievance, more in keeping the issue live for years. The termination is of the year 1984 and it is the subject matter of Reference of the year 1993, may be, he was before a wrong forum in the meantime, but there was no reason not to go before the proper forum by the petitioner, who claims himself to be a Union Leader. Be that as it may, the Reference of the year 1993 got adjudicated in the year 2013. In between the chequered facts have come on record by way of Order dated 18.05.2000 which suggests that, even after approaching the Labour Court which was after about nine years from the date of termination, the statement of claim was not submitted by the workman for about three years. The matter was subsequently dismissed for default as well. Even at the time of filing restoration application, all sorts of averments were made against the Presiding Officer of the Labour Court which is exhaustively dealt with by the Labour Court in the order dated 18.05.2000. This Court is unable to accept the contention that there was any procedural irregularity by the Labour Court or that proper opportunity was not given to the petitioner.
Page 10 of 12 C/SCA/10217/2013 CAV JUDGMENT11. This Court further finds that there is no contradiction in the impugned award, with which the petitioner could be aggrieved. Apparent contradiction is only that, even after upholding the action of the Management of terminating the service of the petitioner, there was no occasion for the Labour Court to award compensation of Rs.1,50,000/- and other benefits in favour of the workman. If any one could be aggrieved, it was the respondent employer. The explanation on behalf of the employer in this regard is that, this chapter had chequered history and they wanted to put an end to it, at least from their side and therefore they had not challenged it, but that factor can certainly not weigh against them. Further, lack of bona fide of the petitioner gets fortified by the fact that, on one hand he challenges the impugned award, he wants it be quashed and set aside, he wants the matter be heard afresh by the Labour Court but he is not willing to repay the benefits which he has received from this very award. The say of the petitioner under these circumstances is rejected.
12. So far the issue with regard to retirement age is concerned, it is recorded that, it is not the point for adjudication in this matter.
13. For the reasons recorded above, it is held that the impugned award of the Labour Court, needs no interference, to the extent it has upheld the action of respondent No.1 Employer of terminating the service of the petitioner. This Court further finds that, after having rejected the Reference on merits, the Labour Court was not justified in awarding compensation of Rs.1,50,000/- and other benefits in favour of the workman, however, no direction can be given to the Page 11 of 12 C/SCA/10217/2013 CAV JUDGMENT petitioner-workman to refund the said amount in his petition, more particularly when the employer has not challenged that part.
14. In the result, this petition is dismissed. No order as to costs.
(PARESH UPADHYAY, J.) mhdave/1 Page 12 of 12