Gujarat High Court
Lakshmansinh Dalabhai Patel vs Sub-Divisional Officer (Admn) on 30 September, 2021
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19072 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19073 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19074 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19075 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19076 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22500 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22505 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22503 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22501 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22487 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22473 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3458 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution NO of India or any order made thereunder ?
================================================================ LAKSHMANSINH DALABHAI PATEL Versus SUB-DIVISIONAL OFFICER (ADMN) ================================================================ Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1 (IN SCA NOS.19072/19, 19073/19, 19074/19, 19075/19, 19076/19 AND 3458/20 ) MR VISHRUT JANI FOR RC JANI AND ASSOCIATE(6436) for the Respondent(s) No. 2 Page 1 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 RULE SERVED(64) for the Respondent(s) No. 1,3 MR VISHRUT JANI FOR RC JANI AND ASSOCIATE(6436) for the Petitioner(s) No. 1,2,3 (IN SCA NOS.22500/19, 22505/19, 22487/19, 22501/19, 22473/19 AND 22503/19) MR DIPAK R DAVE(1232) for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 30/09/2021 COMMON CAV JUDGMENT
1. Since the captioned group of petitions arise out of a common award and the facts are also analogous, the same are decided by this common judgment and order. The workmen have challenged the award to the extent of granting reinstatement instead of compensation, whereas the BSNL has challenged the award of granting compensation.
2. The Industrial Tribunal-cum-Labour Court, Ahmedabad has directed the authorities of Bharat Sanchar Nigam Limited (BSNL) to pay the amount of Rs.1,00,000/- as a lump-sum compensation to the workmen by setting aside their termination of service. All the workmen were appointed in the year 1985 and were conferred the benefits of Temporary Regular Mazdoor (TRM) on 01.10.1989. It is pertinent to note that after their appointment in the year 2000 the Department of Telecommunication, under which they were appointed, was converted into a public company viz. BSNL and their service from the Department of Telecommunication was shifted to BSNL. The workmen were issued a show-cause notice on 13.08.2001 alleging that the Muster Roll with regard to their service from 01.01.1985 to 31.07.1988 produced in the year 1991 was incorrect and false. The workmen Page 2 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 replied to the aforesaid show-cause notice however, nothing was done and a second show-cause notice was issued on 27.01.2004 alleging some illegality. The workmen accordingly replied that the Muster Rolls were verified and counter signed by the concerned officer namely, K.M.Bariya and M.I.Patel and after verification of the Muster Roll, they were conferred the status of Temporary Regular Mazdoor and further regularized as Regular Mazdoor after expiry of three years. The respondent authority again issued the same notice on 13.04.2004, which was replied by the workmen on 25.06.2004 denying all the allegations.
Ultimately, the notice dated 30.06.2006 was issued to the workmen purporting to terminate the service after a period of one (01) month from the date of notice. The show-cause notice issued against the petitioner was challenged before the Central Administration Tribunal, Ahmedabad (CAT) by filing original applications however, the same were disposed of on the ground that it does not have jurisdiction to deal with these matters. Being aggrieved by the order of the CAT, Ahmedabad, the workmen along with other employees approached this Court by filing Special Civil Application No.12965 of 2007 and by the order dated 10.09.2008, this Court has set aside the order of the Tribunal and remanded the matter to the Tribunal.
2.1 It is the case of the workmen that during pendency of the writ petition and before the proceedings in the Tribunal, the stay was operating Page 3 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 with regard to service condition of the petitioner however, in defiance of the stay order, without holding any inquiry, the workmen were terminated from service by the order dated 01.07.2006, which was served on 30.06.2006. The original applications were thereafter, rejected by the CAT, Ahmedabad again on the ground of lack of jurisdiction, which constrained the workmen to file the writ petitions before this Court challenging the order of the Tribunal. The said writ petitions were withdrawn with a liberty to approach the appropriate forum under the Industrial Disputes Act, 1947 (the I.D. Act). The petitioner therefore raised industrial dispute, which came to be referred to Central Government Industrial Tribunal (CGIT), Ahmedabad for adjudication. After dispute was referred to the Tribunal, the Tribunal by the common award has granted the compensation of Rs.1,00,000/- to the workmen instead of reinstatement as the workmen have reached the age of more than 50 years. The common awards are challenged by the workmen in the captioned writ petitions claiming reinstatement and other benefits, whereas the BSNL has also challenged the said award.
3. Learned advocate Mr.Dipak Dave appearing on behalf of the workmen has submitted that the workmen have been terminated, without holding an inquiry on the ground of illegality and irregularity despite the fact that in their reply, they have asserted that the Muster Rolls were verified and counter-signed by the concerned officers K.M.Bariya and M.I.Patel and after Page 4 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 a period of more than 15 years, the BSNL has issued show-cause notice questioning such Muster Rolls. He has submitted that in the written submissions as well as in the oral submissions before the Tribunal, no permission was sought for from the Tribunal to conduct the departmental proceedings or to lead evidence and in absence of the same, the Tribunal has precisely held that the said termination is illegal however, by granting the compensation to the workmen, the Tribunal has fallen in error since the workmen would be deprived of all the compensation benefits as they were the members of such scheme. It is submitted that no oral evidence to reverse the assertion made by the workmen with regard to the Muster Roll was led by the BSNL. Learned advocate has further submitted that the petitioners were conferred the temporary status in the year 1989, after going through the Muster Rolls. It is submitted that the Muster Rolls are not doubted by the BSNL. Neither it has been examined whether the Muster Rolls with regard to their presence were in fact forged or fake. Thus, he has submitted that the impugned award may be modified to the extent directing the BSNL to reinstate the workmen in the service. With regard to the petitioner
- Bharatbhai Mathurbhai Patel (Special Civil Application No.22505 of 2019), learned advocate has submitted that he has already crossed the age of superannuation and hence, appropriate orders may be passed directing the authorities to pay him retirement benefits.
Page 5 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 3.1 In support of his submission, learned advocate has placed reliance on the decision of the Apex Court in the case of Workmen of Firestone Tyre and Rubber Co. of India P. Ltd. Vs. Management , 1973 (1) S.C.C. 813 as well as decision of the Division Bench of this Court in the case of Kalamuddin M. Ansari Vs. Government of India, 2016 (3) G.L.R. 2162. He has also placed reliance on the decision of the Constitutional Bench of the Apex Court in the case of Karnataka State Road Transport Corporation Vs. Lakshmidevamma, 2001 (5) S.C.C. 433 for the proposition of law that since the employer did not seek permission to lead evidence after the Labour Court had held that its domestic enquiry was vitiated and essentially rules of natural justice are to be observed in such proceedings. He has submitted that the BSNL was required to take permission to lead evidence in their written statement however, the same was not done, hence, the termination of the workmen can be said to have been illegal as it was effected without holding any departmental proceedings.
4. In response to the aforesaid submissions, learned advocate Mr.Vishrut Jani appearing on behalf of the BSNL authorities has submitted that the impugned awards are required to be quashed since admittedly the workmen were conferred the status of Temporary Regular Majdoor (TRM) on the basis of the forged certificates and since the said certificates were found to be false, in view of the statement of Page 6 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 two (02) officers - B.M.Bariya and M.I.Patel, it was not necessary to hold any proceedings before terminating them from the service. In support of his submissions, he has placed reliance on the decision of the Apex Court in the case of The State of Bihar and Ors. Vs. Kirti Narayan Prasad, 2019 (13) S.C.C.
250. Thus, he has submitted that the impugned awards may be quashed. In the alternative, he has submitted that the matter may be remanded to the Tribunal for fresh consideration for leading evidence with regard to the misconduct committed by the workmen.
5. This Court has considered the rival submissions advanced by the learned advocates for the respective parties. Record and proceedings are also perused.
6. The entire case of the management of BSNL is premised on the alleged false or forged Muster Rolls, which were considered before conferring the status of TRM to the workmen. It is the case of the workmen that they were conferred the status of TRM and after completion of three (03) years of service, such TRM were made Regular Mazdoor in the year 1994 onwards. It is not in dispute that the workmen were initially employees of the Indian Post and Telegraph Department, Department of Telegraph (DoT), which was converted into BSNL. The workmen were appointed in the year 1985 and they were conferred the benefit of TRM in the year 1989, after verifying their Muster Rolls. From the documents on record, it appears that when the DPC met on 31.07.2001, and in depth scrutiny Page 7 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 was undertaken, it was found that the working certificates produced by the workman was not found authentic. It appears that a three member Committee was constituted, which opined in their Report dated 31.07.2001 that the Muster Rolls of the workmen, which were signed by the two officers - B.M.Bariya and M.I.Patel with regard to the period from September, 1984 to 13.04.1985 were in fact found to be false as the aforesaid officers were not working or holding the charge of the respective posts. The statements of the aforesaid officers were also recorded by the authorities, who had stated that the signature on the Muster Rolls were not theirs. Thereafter a show-cause notice dated 14.08.2001 was issued to the workmen calling upon their explanation. The workmen replied to the same vide Exh.14/3. Thereafter, again on 03.02.2004, the BSNL issued the scn to the workmen. The workmen accordingly replied to the show-cause notice stating that after a span of 15 years, it is very difficult to remember and the workmen had specifically requested to give residential address of the aforementioned officers so that they can verify the same. Ultimately, by the notice Exh.14/16 dated 01.07.2006, it was intimated to the workmen that their services with effect from the date of expiry of one month from the date of such notice, will come to an end. It appears that the aforesaid notice was challenged before the Tribunal as well as this Court and the workmen were not relieved because of the interim order passed in the original applications and in the writ petitions filed Page 8 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 by them. However, they were relieved w.e.f. 16.10.2008 by the order of the even date.
7. The entire case of the Management hinges upon the alleged Muster Rolls, which are not signed by two officers. It is also not in dispute that the officers, who have given the statements against the workmen are neither examined before the Tribunal, nor a departmental inquiry was conducted and no opportunity has been given to the workmen to cross- examine or examine them. In the written statement before the Tribunal, no evidence is led by the BSNL seeking permission from the Tribunal for holding the inquiry.
8. Thus, the core question of law which arises from the aforenoted facts is that whether the award passed by the Tribunal requires interference, and if the same is invalidated, whether the matters are required to be remanded to the Tribunal for fresh considera- tion or not?.
9. In order to appreciate the controversy, I may re- fer to some of the decisions of the Apex Court.
10. The Constitution Bench, in case of Karnataka State Road Transport Corporation Versus Lakshmide- vamma, 2001 (5) SCC 433 while approving the view ex- pressed in the case of Shambu Nath Goyal's case (AIR 1984 SC 289) has observed thus:
"15 The question again arose in the case of Shambu Nath Goyal's case (AIR 1984 SC 289 : 1983 Lab IC 1697) (supra) as to the propriety of waiting till the preliminary issue was decided to give an opportu- nity to the management to adduce evidence, because after the deci-Page 9 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021
C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 sion in the preliminary issue on the validity of the domestic en- quiry, either way, there was nothing much left to be decided there- after. Therefore, in Shambu Nath Goyal's case this Court once again considered the said question in a different perspective. In this judgment, the Court after discussing the earlier cases including that of Shankar Chakravarti V/s. Britannia Buscuit Co. Ltd., (1979) 3 SCR 1165 : (AIR 1979 SC 1652 : 1979 Lab IC 1192), which was a Judgement of this Court subsequent to that of Cooper Engineering (AIR 1975 SC 1900 : 1975 Lab IC 1441) (supra), the following princi- ples were laid down (Para 16 of AIR 1984 SC 289) :
"We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage in the application which may be filed by the management during the pendency of its application made be- fore the Labour Court or Industrial Tribunal seeking its per- mission under Section 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workman's con- tention regarding the defeat in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay. But when the question arises in a reference under S. 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no ques- tion of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defeat in the domestic en- quiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal af- ter the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any appli- cation for the purpose which may result in delay which may lead to wrecking the morale of the workmen and compel him to surrender which he may not otherwise do."
xxxxxx 44 The question as to at what stage the management should seek leave of the Labour Court/Tribunal to lead evidence/additional evidence justifying its action is considered in the draft Judgement of Hegde, J., we respectfully agreed with the same. Having gone through the draft Judgement prepared by Y. K. Sabharwal, J., received later, we felt the necessity of adding the following few lines.
44 The question as to at what stage the management should seek leave of the Labour Court/Tribunal to lead evidence/additional evidence justifying its action is considered in the draft Judgement of Hegde, J. and not the power of the Court/Tribunal requiring or directing the parties to produce evidence if deemed fit in a given case having Page 10 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 regard to the facts and circumstances of that case. As per Section 11(1) of the Industrial Disputes Act, 1947 (for short the 'Act') a Court/Tribunal can follow the procedure which it thinks fit in the circumstances of the case subject to the provisions of the Act and the Rules framed thereunder and in accordance with the principles of natural justice. Under Section 11(3), Labour Court/Tribunal and other authorities mentioned therein have the same powers as are vested in a Civil Court under the Code of Civil Procedure when try- ing a suit in respect of certain matters which include enforcing the attendance of any person and examining him on oath and compelling the production of documents and material objects.
45 It is consistently held and accepted that strict rules of evi- dence are not applicable to the proceedings before Labour Court/Tri- bunal but essentially the rules of natural justice are to be ob- served in such proceedings. Labour Courts/Tribunals have power to call for any evidence at any stage of the proceedings if the facts and circumstances of the case demand the same to meet the ends of justice in a given situation. We reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the Court/Tribunal in the written statement it- self to lead additional evidence to support its action in the alter- native and without prejudice to its rights and contentions. But this should not be understood as placing fetters on the powers of the Court/Tribunal requiring or directing parties to lead additional ev- idence including production of documents at any stage of the pro- ceedings before they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of jus- tice."
11. The aforenoted observation of the constitution bench of Apex Court declares that the Labour Court has the power to direct the parties to lead addi- tional evidence at any stage. The Constitution Bench has approved the view expressed in the case of Shambu Nath Goyal's case in which the Supreme Court has held that "The management is made aware of the workman's contention regarding the defect in the domestic en- quiry by the written statement of defense filed by him in the application filed by the management under Section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay". The said view is further strengthened by the constitution Page 11 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 bench by finally issuing the directions that the Man- agement has in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the Court/Tribunal in the written statement itself to lead additional evidence to sup- port its action. Finally, it is held that such proce- dure as prescribed does not limit the power of the tribunal/Court directing the parties to lead evidence at any stage of proceedings. Thus, if the view ex- pressed by the Constitution Bench affirming the view expressed in Shambu Nath Goyal's case are closely read will indicate that the Labour Court has to con- vey the management of the workman's contention re- garding the defect in the domestic enquiry taken by him in the defence statement, and the Management may seek leave of the Court/Tribunal to lead additional evidence and if the management fails to do it, the Tribunal/Court can ask the parties to lead evidence. The same analogy can be applied to the cases where there is no departmental proceedings held before ter- minating the service of a workman. Thus, in the present case, when a specific contention is raised by the workmen with regard to the non-holding of the de- partmental inquiry and the non-examination of the two officers, it was incumbent on the Labour court to point out to the Management about such defect. How- ever, neither such procedure was followed nor the parties are asked to lead any evidence.
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12. In the recent decision of the Apex in case of State of Uttarakhand and Ors. Vs. Sureshwati , 2021 (3) S.C.C. 10, wherein the Apex Court has held thus:
"21. Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. V. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. wherein the broad principle regarding holding of the enquiry were spelt out as: (SCC pp. 827-29 & 831-32, paras 32 & 40-41) "32. From those decisions, the following principles broadly emerge:
(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A Page 13 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens10 within the judicial decision of a Labour Court or Tribunal.
40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved Page 14 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A."
13. Thus, the Apex Court has reiterated the principles enunciated in the case of Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. V. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. The Supreme Court has held that " Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may Page 15 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points."
It is held by the Apex Court that a case of defective enquiry stands on the same footing as of no enquiry. The legal parameters established by the Supreme court assert that the Labour Court in cases of misconduct where no departmental inquiry has been held by the Management, has to draw the attention of the Management, and even if the same is not done and no enquiry is held, the Labour Court has to give an opportunity to both the employee and employer to adduce evidence before it, and for coming to the conclusion either way, the Tribunal has to appreciate the evidence itself and hold that whether the misconduct is proved or not proved or such misconduct warrants the punishment of dismissal or discharge. The Supreme Court has held that section 11-A of the I.D.Act gives full power to the Tribunal/Court to go into the evidence and satisfy itself. Thus, the contention raised by learned Advocate Mr.Deepak Dave that since the Mangement in its written Page 16 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 statement did not ask for leading of any evidence; the Labour Court has precisely set aside the punishment order, does not merit acceptance. As noted herein above, it was duty of the Labour Court to draw such attention to the Management and direct both the workman and the Management to lead evidence, and only after examination of evidence, the Labour Court was expected to give a finding whether the misconduct is forced or not, and if the same is proved whether the punishment was disproportionate to the proved misconduct.
14. In the present case, the BSNL has not adduced any evidence with regard to genuineness of the Muster Rolls. The officers, who have disputed that the Muster Rolls have not been examined. The Tribunal has also failed to grant the opportunity to the Management to adduce evidence before it.
The Tribunal was required to examine and appreciate the evidence after asking the parties to lead the evidence and both the officers were required to be examined itself for holding that whether the misconduct is established or that the punishment of discharge or termination was warranted or not.
15. In the considered opinion of this Court the view expressed by the Tribunal in denying reinstatement to the workmen on the ground that they are about to reach the age of superannuation is also erroneous. Reinstatement cannot be denied solely on the ground that he or she is about to Page 17 of 19 Downloaded on : Sat Oct 09 14:50:03 IST 2021 C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021 reach the age of superannuation. The Labour court has to examine the consequences of non-
reinstatement and payment of compensation. The status of the workman, the length of service, the entitlement of retirement benefits, regular pay, etc are the factors which have to be kept in mind before denying the reinstatement. The award of the Labour Court also suffers from non-application of mind on such aspect, and hence the matters are required to be remanded.
16. On the bedrock of the aforesaid discussion, the procedure adopted by the Tribunal, while deciding the reference is held to be flawed and erroneous.
17. It is also not disputed that all the workmen had been conferred the temporary status in the year 1989. Necessary details of the workmen are incorporated as under:
Date of Date of Date of Present
Sr. Name of workman Initial Temporary Termination Age of
No.
Appointment Status Petiti-
oners
In the year
1 Lakshmansinh Dalabhai 01.10.1989 16.10.2008 55
1985
Patel
In the year 55
2 Bhamarsinh Dhirabhai Patel 01.10.1989 16.10.2008
1985
In the year 55
3 Gemabhai Abhaysinh Baria 01.10.1989 16.10.2008
1985
In the year 55
4 Kantilal Udesingh Patel 01.10.1989 16.10.2008
1985
In the year 55
5 Amarsinh Sanabhai Patel 01.10.1989 16.10.2008
1985
In the year 63
6 Bharatbhai Mathurbhai 01.10.1989 16.10.2008
1985
Patel
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C/SCA/19072/2019 CAV JUDGMENT DATED: 30/09/2021
18. The petitioner workman have been terminated from service in the year 2008. One of the petitioner Bharatbhai Mathurbhai Patel (Special Civil Application No.3458 of 2020) has reached the age of superannuation. The appropriate course available to this Court is to remand the matter to the Tribunal for reconsideration since there are serious allegations with regard to the forging of muster rolls or the signature of officers, which are put on such rolls. Such accusations are required to be proved by leading evidence. Since, almost 13 years have passed, and the workmen are at the verge of retirement, it would be appropriate that the references are disposed of expeditiously. The impugned awards are quashed and set aside. The matters are remanded to the Tribunal for fresh consideration. Labour Court is directed to dispose of the references within a period of six months.
19. The captioned writ petitions filed by the BSNL being Special Civil Application Nos.22500 of 2019, 22473 of 2019, 22501 of 2019, 22487 of 2019, 22503 of 2019 and 22505 of 2019 are allowed. Rule is made absolute to the aforesaid extent. As a sequel, the writ petitions filed by the workmen are disposed of.
20. Registry to place a copy of this order in each of the connected matters.
21. Record and proceedings be sent back forthwith.
Sd/- .
(A. S. SUPEHIA, J)
NVMEWADA
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