Gujarat High Court
Sulochana vs W.H on 24 June, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/29653/2007 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 29653 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as 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 ?
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SULOCHANA
A R - Petitioner(s)
Versus
W.H.
BRADY AND COMPANY LTD. - Respondent(s)
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Appearance
:
MR
SATYAPAL K GUSAIN for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) : 1,
MR DG
SHUKLA for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 24/06/2010
ORAL
JUDGMENT
Heard learned Advocate Mr. SK Gusain for petitioner and learned Advocate Mr. DG Shukla for respondent.
Petitioner being an employee, has challenged award passed by labour court in Reference (LCA) No. 388 of 2002 dated 6th September, 2007 Exh. 51 wherein Labour Court Ahmedabad has allowed reference granting reinstatement with continuity of service to original post without back wages for interim period with costs of Rs.1,000.00.
This petition is filed by petitioner challenging award dated 6th September, 2007 in respect to direction depriving petitioner from full back wages for interim period, therefore, in paragraph 41, prayer is made by petitioner to direct respondent to pay full back wages for interim period.
Learned Advocate Mr. SK Gusain for petitioner has submitted brief facts of present petition as under:
Petitioner was appointed as Steno Typist on 14th May, 1982 and she was confirmed as such with effect from 1st January, 1983. On 6th July, 2001, show cause notice was issued to workman and thereafter, petitioner was suspended pending inquiry with effect from 3rd August, 2001. Thereafter, as per order dated 10.8.2001, charge sheet was issued to workman. 13.8.2001, Reply to charge sheet was submitted by petitioner along with copy of reply dated 11.7.2001 to show cause notice dated 6.7.2001. On 24.12.2001, service of workman was terminated by respondent and thereafter, industrial dispute was raised which was referred for adjudication on 4th April, 2002 and same has been partly allowed by labour court denying full back wages for interim period while granting reinstatement in service with continuity of service on original post by award dated 6th September, 2007.
Learned Advocate Mr. Gusain for petitioner has submitted that labour court has committed gross error in denying full back wages for interim period. He submitted that before labour court, vide Exh. 4, statement of claim was filed by petitioner and reply thereto was filed by respondent vide Exh. 12. Petitioner was examined vide Exh.
18. Before that, vide Exh. 15, legality and validity of departmental inquiry was challenged by petitioner and thereafter, vide Exh. 29 in Purshis, petitioner has made clear submission before labour court which is at page 72 wherein averment was made that dispute relates to workman is discharge or dismissal which is not just and legal and, therefore, to exercise power under sec. 11-A of ID Act, 1947 and set aside order of discharge or dismissal and direct reinstatement of workman or give such other relief to workman for awarding any lesser punishment in lieu of discharge or dismissal as the circumstances of case may require. It was also prayed as per said Purshis at Exh. 29 that rejoinder filed by applicant along with other documents on 6.2.2007 may be treated as part of statement of claim filed by petitioner. Said purshis was given by petitioner before labour court on 11th July, 2007. In short, submission of petitioner before labour court was to exercise powers under section 11-A of ID Act, 1947 while deciding reference and examine whether punishment imposed by respondent employer is justified by respondent or not and then to pass appropriate orders as required under section 11-A of ID Act, 1947. In evidence of petitioner at Exh. 18, specific statement was made by petitioner on oath that after termination of her services, sincere efforts were made by petitioner for obtaining job but she has not been able to get job and, therefore, she has remained unemployed during interim period from date of dismissal On behalf of respondent, one witness Mr.Janardan was examined at Exh.38. In evidence of respondent, gainful employment of petitioner has not been proved. No other evidence has been led by respondent, thereafter, evidence of respondent has been closed vide Purshis at Exh. 50. When purshis was given by petitioner to decide matter while exercising power under section 11-A of ID Act, 1947, therefore, question of deciding legality and validity of departmental inquiry does not arise. Labour Court has examined matter while exercising power under section 11-A of ID Act, 1947. After considering evidence on record produced by both parties and documents which are on record, Labour Court has come to conclusion that looking to gravity of misconduct and long length of service of petitioner, punishment of dismissal from service imposed by respondent is harsh and unjustified, therefore, granted reinstatement with continuity of service without back wages being a reasonable and just order to be passed in favour of petitioner. Labour court has considered clean past record of petitioner. Learned Advocate Mr. Gusain for petitioner has vehemently submitted that labour court has exercised powers under section 11-A of ID Act, 1947 and has come to conclusion that order of dismissal is harsh and unjustified, then, for denying total back wages for interim period, labour court should have given reasons in support of its conclusion. He submitted that petitioner's evidence has clearly proved unemployment of petitioner for interim period and inspite of making sincere efforts, no employment has been received by petitioner. Respondent has not proved gainful employment of petitioner and, therefore, in light of this back ground, whether full back wages for interim period can be denied or any part thereof can be denied, for that, there is no any reason given by labour court in support of its conclusion. He also submitted that it is legal obligation upon judicial authority to assign reason, being a part of principles of natural justice and as reason has not been given for denying total back wages for interim period of about six years, being without any justification, petitioner has filed this petition before this Court claiming full back wages for interim period because order of punishment itself is found to be unjustified looking to gravity of misconduct. Learned Advocate Mr. Gusain for petitioner has submitted that why total back wages for interim period has been denied by labour court, for that, labour court has not discussed evidence of workman and has also not discussed evidence of respondent. He submitted that at least application of mind on the part of labour court must have to be established in case when relief is not granted by labour court. As per his submission, in case when dismissal is found to be unjustified, then, normal consequence is that workman is entitled for full back wages for interim period but for denial of total back wages, labour court must give reason or some justification with application of mind which is not there in the award and simply denied back wages for interim period and, therefore, labour court has committed gross error in not granting any amount of back wages for interim period to concerned employee.
Respondent has filed affidavit in reply against present petition which has been considered by this court. Learned Advocate Mr. DG Shukla appearing for respondent has submitted that labour court has rightly exercised power under section 11-A of ID Act, 1947 and for that, discretionary power under section 11A of ID Act, 1947 has been rightly exercised by labour court by passing balanced award while granting reinstatement with continuity of service without back wages for interim period. According to him, labour court has not committed any error which would require interference of this court while exercising powers under section 227 of Constitution of India.
I have considered submissions made by both learned advocates. I have also perused award passed by labour court. IN this case, it is understood between both parties that that in present petition, only question required to be examined by this court is whether denial of full back wages for interim period is right or wrong. In this petition, question of granting relief of reinstatement with continuity of service to original post is not reopened by this court. Therefore, order granting reinstatement to petitioner with continuity of service on original post has remained in tact and this court has not disturbed finding in respect of setting aside dismissal order. Therefore, question to be considered by this court is whether award of denial of full back wages for interim period is legal and valid or not and whether labour court has committed any error which would require interference of this court or not? Relevant section 11-A of ID Act, 1947 is quoted as under:
11A.
Powers of Labour Courts, Tribunals and National, Tribunals to give appropriate relief in case of discharge or dismissal of workman. -
Whereas an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to workman including award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require.
Provided that in any proceeding under this section, the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.
This aspect has been considered by apex court in case of Hindustan Motors Ltd. Versus Tapan Kumar Bhattacharya and another, (2002) 6 SCC page 41. Relevant observations made by apex court in para 11,12 and 13 of said judgment are quoted as under:
11. Under Section 11-A as amended in 1971, the Industrial Tribunal is statutorily mandated, while setting aside the order of discharge or dismissal and directing reinstatement of the workman to consider the terms and conditions, subject to which the relief should be granted or to give such other relief to the workman including the award of any other punishment in lieu of the discharge or dismissal, as the circumstances of the case may require. The section is couched in wide and comprehensive terms. It vests a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows that the Tribunal is duty bound to consider whether in the circumstances of the case, back wages have to be awarded and if so, to what extent.
12. From the award passed by the Industrial Tribunal which has been confirmed by the Division Bench of the High Court it is clear that the order for payment of full back wages to the workman was passed without any discussion and without stating any reason. It appears that the Tribunal and the Division Bench had proceeded on the footing that since the order of dismissal passed by the Management was set aside, the order of reinstatement with full back wages was to follow as a matter of course.
13. In Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. & Ors., [(1979) 2 SCC 80 : 1979 SCC (L&S) 53, , a three-Judge Bench of this Court laid down :
"11. In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner.
The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (see Susannah Sharp V. Wakefield [1891 AC 173 :
(1886-90) All ER Rep.651 (HL)] Recently, in case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. M/s. Shukla & Bros., JT 2010 (4) SC page 35, apex court has considered that reasoning being basic essential, same cannot be denied. Apex court has observed that reasoning given by court is having significance and it has been held that reasoning is very life of law. Relevant Head Notes with internal paragraphs mentioned below head note are quoted as under:
Rajasthan Sales Tax Act, 1994 Section 86 Constitution of India, 1950, Article 136 Revision Impartible contract for construction of shops with doors and shutters Assessing authority levied tax, interest and penalty In appeal, orders set aside Further appeal to Board also failed On revision High Court disposed of the matter with cryptic orders Questions of law and facts raised Question of iron doors and shutters being taxable or not, not considered by High Court as no tax paid by assessee on construction of those shutters and doors on construction of those shutters and doors No reasons given. Held that order is not sustainable and is set aside. Matter remitted back for fresh consideration. (Paras 7,8,24, 25) Constitution of India, 1950 Article 136 Doctrine of audi alteram partem Reasoning Applicability Basic essentials. Held that three basic essentials should be followed as providing of reasons cannot be dispensed with.
Case law discussed. S.N. Mukherjee's case relied upon.
Held :
It would neither be permissible nor possible to state as a principle of law, that while exercising power of judicial review on administrative action and more particularly judgment of courts in appeal before the higher Court, providing of reasons can never be dispensed with. The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard. Secondly, the concerned authority should provide a fair and transparent procedure and lastly, the authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order.
(Para 9) The administrative authority and tribunals are obliged to give reasons, absence whereof could render the order liable to judicial chastise. Thus, it will not be far from absolute principle of law that the Courts should record reasons for its conclusions to enable the appellate or higher Courts to exercise their jurisdiction appropriately and in accordance with law. It is the reasoning alone, that can enable a higher or an appellate court to appreciate the controversy in issue in its correct perspective and to hold whether the reasoning recorded by the Court whose order is impugned, is sustainable in law and whether it has adopted the correct legal approach. To sub-serve the purpose of justice delivery system, therefore, it is essential that the Courts should record reasons for its conclusions, whether disposing of the case at admission stage or after regular hearing.
(Para 9) A litigant who approaches the Court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the Court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher Court in the event of challenge to that judgment.
(Para 12) The orders of the Court must reflect what weighed with the Court in granting or declining the relief claimed by the applicant. In this regard, we may refer to certain judgments of this Court. (Para 17) The contention that the respondent had not manufactured the shutters from the tax paid raw material and also that the contract in question was not impartible but a consequential item for completion of the contract required examination by the High Court. In light of the judgments referred to and relied upon by the parties including the judgment of this Court, it is true that requirement of stating reasons for judicial orders necessarily does not mean a very detailed or lengthy order, but there should be some reasoning recorded by the Court for declining or granting relief to the petitioner. The purpose, as already noticed, is to make the litigant aware of the reasons for which the relief is declined as well as to help the higher Court in assessing the correctness of the view taken by the High Court while disposing off a matter. (Para 23) Article 136 - Reasoning - Requirement of Applicability to administrative actions. Held that principles apply to administrative actions as well. Siemens Engineering's case (AIR 1976 SC 1785) relied with Mc Dermott International Inc.'s case [2006 SLT 345].
Other case law discussed.
Held :
The order of an administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality. The distinction between passing of an order by an administrative or quasi-judicial authority has practically extinguished and both are required to pass reasoned orders. (Para 13) Principle has been extended to administrative actions on the premise that it applies with greater rigor to the judgments of the Courts (Para 16) Article 136 - Reasoning - Giving of reasons Significance of. Held that reasoning is the very life of law.
HELD A litigant has a legitimate expectation of knowing reasons for rejection of his claim/prayer. It is then alone, that a party would be in a position to challenge the order on appropriate grounds. Besides, this would be for the benefit of the higher or the appellate court. As arguments bring things hidden and obscure to the light of reasons, reasoned judgment where the law and factual matrix of the case is discussed, provides lucidity and foundation for conclusions or exercise of judicial discretion by the courts. Reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases (Wharton's Law Lexicon). Such is the significance of reasoning in any rule of law. Giving reasons furthers the cause of justice as well as avoids uncertainty. As a matter of fact it helps in the observance of law of precedent. Absence of reasons on the contrary essentially introduces an element of uncertainty, dissatisfaction and give entirely different dimensions to the questions of law raised before the higher/appellate courts. (Para
20) Article 136 - Reasoning - Practice of Applicability and requirement of, stated.
HELD By practice adopted in all Courts and by virtue of judge made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and, in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and proper reasoning is the foundation of a just and fair decision. In the case of Alexander Machinery (Dudley) Ltd. (supra), there are apt observations in this regard to say "failure to give reasons amounts to denial of justice". Reasons are the real live links to the administration of justice. With respect we will contribute to this view. There is a rationale, logic and purpose behind a reasoned judgment. A reasoned judgment is primarily written to clarify own thoughts; communicate the reasons for the decision to the concerned and to provide and ensure that such reasons can be appropriately considered by the appellate/higher Court. Absence of reasons thus would lead to frustrate the very object stated hereinabove.(Para 22).
Relevant Para 20, 21 and 22 of said decision are also quoted as under:
20.
We are not venturing to comment upon the correctness or otherwise of the contentions of law raised before the High Court in the present petition, but it was certainly expected of the High Court to record some kind of reasons for rejecting the revision petition filed by the Department at the very threshold. A litigant has a legitimate expectation of knowing reasons for rejection of his claim/prayer. It is then alone, that a party would be in a position to challenge the order on appropriate grounds. Besides, this would be for the benefit of the higher or the appellate court. As arguments bring things hidden and obscure to the light of reasons, reasoned judgment where the law and factual matrix of the case is discussed, provides lucidity and foundation for conclusions or exercise of judicial discretion by the courts. Reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases (Wharton's Law Lexicon). Such is the significance of reasoning in any rule of law. Giving reasons furthers the cause of justice as well as avoids uncertainty. As a matter of fact it helps in the observance of law of precedent. Absence of reasons on the contrary essentially introduces an element of uncertainty, dis-satisfaction and give entirely different dimensions to the questions of law raised before the higher/appellate courts. In our view, the court should provide its own grounds and reasons for rejecting claim/prayer of a party whether at the very threshold i.e. at admission stage or after regular hearing, howsoever precise they may be.
21. We would reiterate the principle that when reasons are announced and can be weighed, the public can have assurance that process of correction is in place and working. It is the requirement of law that correction process of judgments should not only appear to be implemented but also seem to have been properly implemented. Reasons for an order would ensure and enhance public confidence and would provide due satisfaction to the consumer of justice under our justice dispensation system. It may not be very correct in law to say, that there is a qualified duty imposed upon the Courts to record reasons. Our procedural law and the established practice, in fact, imposes unqualified obligation upon the Courts to record reasons. There is hardly any statutory provision under the Income Tax Act or under the Constitution itself requiring recording of reasons in the judgments but it is no more res integra and stands unequivocally settled by different judgments of this Court holding that, the courts and tribunals are required to pass reasoned judgments/orders. In fact, Order XIV Rule 2 read with Order XX Rule 1 of the Code of Civil Procedure requires that, the Court should record findings on each issue and such findings which obviously should be reasoned would form part of the judgment, which in turn would be the basis for writing a decree of the Court.
22. By practice adopted in all Courts and by virtue of judge made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and, in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and proper reasoning is the foundation of a just and fair decision. In the case of Alexander Machinery (Dudley) Ltd. (supra), there are apt observations in this regard to say "failure to give reasons amounts to denial of justice". Reasons are the real live links to the administration of justice. With respect we will contribute to this view. There is a rationale, logic and purpose behind a reasoned judgment. A reasoned judgment is primarily written to clarify own thoughts; communicate the reasons for the decision to the concerned and to provide and ensure that such reasons can be appropriately considered by the appellate/higher Court. Absence of reasons thus would lead to frustrate the very object stated hereinabove. The order in the present case is as cryptic as it was in the case of Sunil Kumar Singh Negi (supra). Being a cryptic order and for the reasons recorded in that case by this Court which we also adopt, the impugned order in the present appeal should meet the same fate.
In light of aforesaid two decisions of apex court and also in light of facts of present case, and after perusal of award passed by labour court, it is apparent from record that labour court has committed gross error in denying full back wages for interim period without giving any reason in support of such conclusion. Denial of back wages for whole period is based on unreasoned order. Therefore, according to my opinion, while exercising discretionary power, labour court should have to give reason in support of its conclusion which shows application of mind by labour court. Denial of total back wages for interim period without assigning reasons shows total non application of mind on the part of labour court. Therefore, it is an apparent error committed by labour court in not giving reason in support of its conclusion to deny total back wages for interim period and, therefore, award dated 6th September, 2007 in respect to denial of back wages for interim period is required to be quashed and set aside while maintaining award of reinstatement with continuity of service in tact. Therefore, direction of denying total back wages for interim period is hereby quashed and set aside while remanding mater back to labour court to decide question of back wages a fresh without disturbing finding of granting reinstatement with continuity of service to original post and labour court shall have to examine only question of back wages on the basis of evidence on record and for that, no further evidence is required to be taken by labour court from both parties. This matter has been remanded back for limited purpose that whatever decision is to be taken by labour court in respect to question of back wages, labour court must give reasons in support of its conclusion. For that, both parties are having liberty to make submissions before labour court only in respect to question of back wages and that submission is required to be considered by labour court, Ahmedabad while determining question of back wages for interim period but except that, no fresh evidence is required to be led by either side before labour court. It is directed to labour court to decide this question of back wages within three months from the date of receiving copy of present order and to decide question of back wages after giving reasonable opportunity of hearing to both parties in accordance with law within period of three months from date of receiving copy of present order. Accordingly, present petition is allowed and award passed by labour Court Ahmedabad dated 6th September, 2007 in Reference (LCA) No. 388 of 2002 is hereby quashed and set aside in so far as it relates to denial of back wages for interim period and matter is remanded back to labour court Ahmedabad to decide only question of back wages after giving reasonable opportunity of hearing to both parties and then to pass appropriate reasoned order in accordance with law within three months from date of receiving copy of this order. It is made clear that order of granting reinstatement with continuity of service to original post, passed by labour court has not been disturbed by this court and labour court should not have to re-examine this issue. No fresh evidence is to be permitted to either side by labour court for deciding question of back wages for interim period. Rule is accordingly made absolute in terms indicated herein above with no order as to costs.
(H.K. Rathod,J.) Vyas Top