Gujarat High Court
Division Controller vs C M Vasava on 9 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/11666/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11666 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DIVISION CONTROLLER
Versus
C M VASAVA
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Appearance:
MR HARDIK C RAWAL(719) for the PETITIONER(s) No. 1
MR GK RATHOD(2386) for the RESPONDENT(s) No. 1
NOTICE SERVED(4) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 09/04/2018
ORAL JUDGMENT
1. Heard Mr.Rawal, learned advocate for the petitioner and Mr.Sonegra, learned advocate for Mr.Rathod, learned advocate for the respondent. 1
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2. In present petition, the petitioner has challenged award dated 16.8.2014 passed by the learned Industrial Tribunal at Ahmedabad in Approval Application (IT) No.46 of 2011 in Reference (IT) No.178 of 2011 whereby the learned Tribunal rejected approval application.
3. So far as factual background is concerned, below mentioned facts have emerged from the record.
4. It appears that while respondent No.1 was in service with the petitioner corporation, he contested election for the post of Sarpanch. 4.1 Respondent No.1 got elected as Sarpanch and on 5.3.2008, he was declared Sarpanch of the village.
4.2 According to the Resolution No.1213 passed by the petitioner corporation, employees are prohibited from contesting election to any post in local authority or for any post in the State 2 C/SCA/11666/2015 JUDGMENT Legislature Parliament, etc. 4.3 In the light of the said Resolution No.1213 and the result of the election whereby respondent No.1 came to be declared elected as Sarpanch, the petitioner corporation initiated departmental proceedings against respondent No.1. 4.4 A chargesheet (i.e. Chargesheet No.136 of 2008) came to be issued on the allegation that respondent No.1 committed violation of Resolution No.1213.
4.5 Domestic enquiry was conducted in pursuance of the said chargesheet.
4.6 Respondent No.1 did not participate in the domestic enquiry. The corporation forwarded the record of domestic enquiry to respondent No.1. 4.7 Despite such fact, respondent No.1 chose to abstain from the proceedings.
4.8 Consequently, the Enquiry Officer concluded the enquiry ex parte and submitted his report to 3 C/SCA/11666/2015 JUDGMENT the Disciplinary Authority.
4.9 According to the findings recorded by the Enquiry Officer, the Enquiry Officer held that the charge and allegations against the concerned employee (respondent No.1) are proved. 4.10 Under the circumstances, the petitioner corporation, vide order dated 31.12.2011, dismissed respondent No.1 from service. The petitioner corporation also forwarded, by money order, a sum of Rs.5,123/ to respondent No.1 as notice pay.
4.11 It appears that at the time when the competent authority passed order dated 31.12.2011, an industrial dispute related to general demand (a reference in respect of several demands raised by the workman) was pending by way of Reference No.178 of 2011. Therefore, the corporation preferred approval application before the learned Tribunal.
4.12 The corporation declared, in the
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application, that it has already paid / forwarded notice pay (Rs.5,123/) to respondent No.1 by money order. With such declaration, the corporation filed approval application which came to be registered as Approval Application (IT) No.46 of 2011.
4.13 It appears that before the corporation passed penalty order dated 31.12.2011 (dismissing respondent No.1 from service), respondent No.1 had challenged the show cause notice / charge sheet No.136 of 2008 on the ground that it was contrary to Regulation No.80. The said dispute was registered as Reference (IT) No.159 of 2009. 4.14 On the ground that the said Reference No.159 of 2009 was pending and that in the said reference, the legality and propriety of show cause notice / chargesheet was challenged, the corporation should have filed permission application under Section 33(1)(b) of the Industrial Disputes Act, 1947 in the said Reference No.159 of 2009, however, the 5 C/SCA/11666/2015 JUDGMENT corporation, instead, filed approval application under Section 33(2)(b) in Reference No.178 of 2011 and that, therefore, the said application would not be maintainable and should not be entertained, respondent No.1 opposed the said approval application.
4.15 The learned Tribunal adjudicated Approval Application No.46 of 2011 and on the ground that the award in Reference No.159 of 2009 would become enforceable on completion of 30 days after its publication, the proceedings of reference cannot be said to have been concluded and that, therefore, the corporation should have filed permission application and not approval application, the learned Tribunal rejected the approval application.
5. Mr.Rawal, learned advocate for the petitioner corporation submitted that Reference No.159 of 2009 came to be dismissed vide award dated 9.9.2011, whereas the corporation passed penalty order dated 31.12.2011. He submitted that the 6 C/SCA/11666/2015 JUDGMENT date on which the corporation passed termination order, Reference No.159 of 2009 was not pending. Under the circumstances, question of filing permission application under Section 33(1)(b) did not arise. He further submitted that on 31.12.2011, i.e. when the corporation passed termination / penalty order, only one reference, i.e. Reference No.178 of 2011 (general reference for general demand raised by and on behalf of the workman of the corporation) was pending, the corporation, having regard to the fact that the misconduct in connection with the termination order is passed, is not connected with the subject matter of pending dispute (Reference No.178 of 2011) and that, therefore, the corporation was obliged to file application under Section 33(2)(b) of the Act. Consequently, the corporation filed Application No.46 of 2011 which was proper and in accordance with the provisions under Section 33 of the Act. However, the learned Tribunal misconstrued the provisions and overlooked the fact that Reference No.159 of 2009 7 C/SCA/11666/2015 JUDGMENT was already disposed of. Learned advocate for the petitioner corporation submitted that since the said relevant aspects are not taken into account by the learned Tribunal, the award is unjust and contrary to the provisions under the Act and therefore, the same deserves to be set aside.
6. Per contra, Mr.Sonegra, learned advocate for respondent No.1 submitted that the learned Tribunal has taken into account the fact that the award would become enforceable upon expiry of 30 days after the publication and that the award, consequently, became enforceable on 16.12.2011, i.e. after the termination order passed by the corporation. According to respondent No.1, the learned Tribunal is justified in holding that the corporation should have filed permission application and the learned Tribunal has not committed any error in rejecting the approval application. Therefore, the petition should be dismissed.
7. I have considered rival submissions. I have 8 C/SCA/11666/2015 JUDGMENT also considered impugned award and other material available on record.
8. So as to appreciate the controversy, it is necessary and relevant to take into account Section 33(1)(a) and Section 33(1)(b) as well as Section 33(2)(a) and Section 33(2)(b) of the Industrial Disputes Act, 1947. The said provisions read thus:
"33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.
(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute,
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman;
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for 9 C/SCA/11666/2015 JUDGMENT approval of the action taken by the employer." 8.1 From above mentioned provisions, it emerges that when the service of the employee is terminated for misconduct and if such misconduct is connected with which the dispute is pending before the learned Labour Court or the learned Industrial Tribunal, then such case would fall under Section 33(1)(b) of the Act. 8.2 Whereas if the service of an employee is terminated for any misconduct which is not connected with the dispute pending before the learned Tribunal, then the employer would be obliged to file an application under Section 33(2)(b) of the Act.
9. Now, in light of the said provision and distinction between the scope of Section 33(1)(b) and Section 33(2)(b), it is relevant to take into account the details of the reference case which have been referred to by the parties as well as the learned Tribunal.
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10. From the record, it has emerged that the petitioner was served with Chargesheet No.136 of 2008 dated 12.12.2008. Feeling aggrieved by th said chargesheet, the petitioner had raised dispute with the demand that the chargesheet should be set aside because it was in breach of Regulation No.80. The said dispute was registered as Reference No.159 of 2009.
10.1 The learned Tribunal dismissed / rejected the said Reference No.159 of 2009 vide award dated 9.11.2011.
10.2 On the other hand, the petitioner corporation had, after issuing the chargesheet dated 12.12.2008 bearing No.136 of 2008, conducted domestic enquiry and on conclusion of the proceedings and after considering the report of the Enquiry Officer, the Disciplinary Authority terminated the service of respondent No.1 vide order dated 31.12.2011 (i.e. almost one and half months after the Court dismissed the 11 C/SCA/11666/2015 JUDGMENT Reference No.159 of 2009).
11. At this stage, it is relevant to note that Reference No.159 of 2009, i.e. the subject matter of the said reference and the misconduct for which the service of respondent No.1 came to be terminated, are connected.
11.1 In that view of the matter, if Reference No.159 of 2009 had been pending for adjudication before the learned Tribunal as on the date when order terminating the service came to be passed i.e. on 31.12.2011, then the corporation would have been obliged to file permission application under Section 33(1)(b).
11.2 However, the learned Tribunal had already dismissed / rejected the reference vide award dated 9.11.2011.
11.3 Under the circumstances, the reference case was not pending before the learned Tribunal at the time / on the date when the termination order came to be passed.
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12. It is relevant to note, at this stage, that Section 33 of the Industrial Disputes Act employs below mentioned expression: "33(1) During th pendency of any ...... proceeding before .... Labour Court or Tribunal...." 12.1 Thus, what is contemplated by Section 33 is that the proceeding must be 'pending' before learned Labour Court or learned Tribunal. 12.2 Section 33 does not employ words or expression 'during pendency of any proceedings and till the award in respect of such proceedings becomes enforceable'.
12.3 At this stage, it is relevant to take into account the definition of the term "award" as contemplated under Section 2(b) of the Act, which reads thus: "2(b) "award" means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under section 10A;" (Emphasis supplied) 12.4 On plain reading of said provision, it becomes clear that 'award' means 'final 13 C/SCA/11666/2015 JUDGMENT determination' of dispute. Thus, when 'final award' is passed by learned Labour Court, there is determination of dispute.
12.5 When the dispute referred to learned Tribunal for adjudication is finally determined, then it cannot be said that any proceedings are pending before the learned Tribunal. 12.6 'Determination' of dispute by the Court is different from 'enforceability' of awarded at the instance of the party in whose favour award is rendered or on its own force.
12.7 The stage of enforceability of award occurs after the 'dispute' is 'determined' and not at the stage when 'dispute is pending determination'.
12.8 Enforceability of an award is altogether a different situation and different concept then the pendency of the proceedings before learned Tribunal.
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C/SCA/11666/2015 JUDGMENT 12.9 The said two events are altogether different and distinct events and they occur at different stage and one cannot be confused with another. The proceedings before learned Tribunal come to an end on 'determination' of dispute with rendition of an award and upon rendition of 'award' the dispute cannot be said to be 'pending' which is the requirement - a sine qua non requirement for attracting section 33(1) or even section 33(2).
12.10 The award, after its rendition, would become enforceable as per Section 17(a) of the Act. However, Section 33 does not take into account the period upto the date when the award rendered by the tribunals becomes enforceable. 12.11 The Section 33 takes in its fold the period only upto the date on which the proceedings before learned Tribunal remained 'pending' i.e. until the dispute is 'determined' and award is rendered. Enforceability of award is a stage subsequent to 'determination' of 15 C/SCA/11666/2015 JUDGMENT dispute and subsequent to rendition of award. 12.12 Once award is rendered, there is determination of dispute and after rendition of award, the dispute cannot be said to be pending. 12.13 In present case, reference No.159 of 2009 came to be finally 'determined' by learned Tribunal on 9.11.2011 when the Tribunal rendered the award on 9.11.2011.
12.14 It s also pertinent that the said award was published on 16.11.2011 i.e. almost 6 weeks before the order terminating the service came to be passed.
12.15 It is pertinent that on publication of award Labour Court / Industrial Tribunal would be 'functus officio'. Therefore also the dispute, by any stretch of imagination, cannot be said to be pending when penalty order came to be passed by the Disciplinary Authority on 31.12.2011.
12.16 Under the circumstances, it cannot be
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said that on 31.12.2011 i.e. the date on which the competent authority passed the termination order, 'any proceedings' involving 'a dispute connected with the misconduct' was 'pending' before learned Tribunal.
13. At this stage, it would be appropriate to take into account the facts related to another reference i.e. reference No.178 of 2011.
14. So far as said other reference is concerned, it is not in dispute that by virtue of reference No.178 of 2011, appropriate government referred several demands raised by and on behalf of the workmen of petitioner corporation. 14.1 It is also not in dispute that the misconduct (for which the respondent No.1 came to be terminated) was not connected with the dispute pending by way of reference No.178 of 2011.
15. At the same time, it is also not in dispute that the said reference No.178 of 2011 was pending for adjudication (inasmuch as award 17 C/SCA/11666/2015 JUDGMENT either partially/preliminary or final award) was not passed by learned Tribunal as on 31.12.2011. 15.1 Meaning thereby, the proceedings related to reference No.178 of 2011 were not decided by learned Tribunal by passing award and the said proceedings were 'pending' for adjudication before learned Tribunal.
15.2 Having regard to the pendency of the said reference and also having regard to the undisputed fact that the misconduct was not connected with the subject matter of reference No.178 of 2011, the corporation filed approval application under Section 33(2)(b) of the Act.
16. Unfortunately, the learned Tribunal failed to appreciate said aspect and the distinction between the provisions under subsection 1(b) and 2(b) of Section 33.
16.1 Learned Tribunal also failed to appreciate the meaning, scope and effect of the words 'during pendency of any proceeding' as well as 18 C/SCA/11666/2015 JUDGMENT the word 'determination'.
16.2 Unfortunately, learned Tribunal confused the meaning of expression 'during pendency of proceeding' with the expression 'enforceability of the award'.
17. In this context, it would be appropriate to take into account provision under Section 17(A) of the Act, which reads thus: "17A Commencement of the award. (1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under section 17:"
18. On plain reading of Section 17A, it becomes clear that said section makes provision for enforceability of the award i.e. the time when award shall become enforceable. The said two stage and concepts are different matters. As discussed above, pendency of the proceedings would come to end on rendition of the award. The award, after its rendition, is required to be published and it becomes enforceable after its publication and in the manner prescribed under 19 C/SCA/11666/2015 JUDGMENT Section 17A of the Act and on publication of award the Court is rendered functus officio.
19. The learned Tribunal passed impugned order without considering and appreciating above discussed aspects and issues. The learned Tribunal permitted itself to be misdirected and the learned Tribunal relied on / applied wrong provision and misconstrued the provision. These errors led the Tribunal to wrong conclusion and decision.
20. For aforesaid reasons, the award impugned in present petition cannot be sustained.
21. The approval application deserves to be remanded to learned Tribunal to determine the same on merits. The said process can be undertaken only by learned Tribunal.
22. Therefore, following order is passed:
(a) The petition is partly allowed.
(b) The order dated 16.8.2014 in approval 20 C/SCA/11666/2015 JUDGMENT application No.46 of 2011 is set aside and the approval application is remanded to learned Tribunal for fresh decision on merits.
(c) Learned Tribunal shall pass fresh order on merits in accordance with law and shall grant opportunity of hearing to both sides.
All contentions with regard to merits of approval application are kept open. With aforesaid clarification, petition is disposed of.
Sd/-
(K.M.THAKER, J) Bharat 21