Gujarat High Court
Vinayak Himmatlal Rawal vs Bharat Petroleum Limited on 14 September, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/3615/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3615 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 ? 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 NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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VINAYAK HIMMATLAL RAWAL
Versus
BHARAT PETROLEUM LIMITED
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Appearance:
MR UT MISHRA(3605) for the PETITIONER(s) No. 1
MR DG SHUKLA(1998) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 14/09/2018
ORAL JUDGMENT
1. Heard Mr.Mishra, learned advocate for the petitioner and Mr.Shukla, learned advocate for the respondent.
2. By present petition, the original claimant 1 C/SCA/3615/2015 JUDGMENT has challenged award dated 317.2013 passed by the learned Central Government Industrial Tribunal cumLabour Court, Ahmedabad in Reference (CGITA) No.100 of 2004 [Old Reference (ITC) No.73 of 1998] whereby the learned Tribunal dismissed the reference.
3. So far as factual backdrop is concerned, it has emerged from the record and from rival submissions that present petitioner was employed by present respondent. The petitioner worked with the respondent as Engineering Assistant since December 1978. In April 1995, the respondent issued a showcause notice with regard to certain misconduct allegedly committed by present petitioner. According to the petitioner, the allegations were false and the notice was issued to victimise him. The petitioner submitted reply to the said notice which was not found satisfactory. Therefore, the respondent issued a chargesheet dated 8.6.1995. The petitioner submitted reply to the chargesheet. Thereupon, 2 C/SCA/3615/2015 JUDGMENT the respondent decided to conduct departmental enquiry. According to the petitioner, sufficient opportunity of hearing and defence was not granted during the enquiry proceeding. Upon conclusion of the enquiry, the officer, who conducted the enquiry, submitted his findings and report. The Disciplinary Authority considered the findings recorded by the Enquiry Officer. Thereafter, the Disciplinary Authority took into account the gravity of misconduct, past service record and the material obtaining on record of the enquiry and decided to terminate the service of the petitioner. Therefore, the order dated 5.11.1996 cam to be passed whereby the respondent terminated service of the petitioner. 3.1 The petitioner raised industrial dispute. Appropriate government referred the dispute for adjudication to learned Tribunal, Ahmedabad vide order dated 27.8.1998. The learned Tribunal registered the dispute as Reference (ITC) No.73 of 1998.
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C/SCA/3615/2015 JUDGMENT 3.2 Before the learned Tribunal, the petitioner herein filed statement of claim. The summary of statement of claim is recorded in the award, which reads thus:
"3. The case of the 2nd party workman as per statement of claim, shortly stated, is that he joined as Engg. Assistant on 18.12.1978 in the service of the corporation and was performing his duty faithfully and diligently but in spite of that officers of the corporation were harassing him and that he was never issued any notice or warning in the past. But a show cause notice dated 25.04.1995 was wrongly issued to him containing false allegation and was served upon him and he replied to show cause notice but even then wrong charge sheet was issued to victimise him, he was not provided with documents as demanded. He was not given fair chance to defend at the enquiry by not allowing the Advocate as defence counsel in the enquiry. The corporation had taken one sided attitude with a view to award punishment. Sufficient opportunity was not granted and illegal enquiry was conducted, enquiry officer was in collusion with management and there was preplanned conspiracy against him. The finding of enquiry officer is baseless and perversed. Even after dismissal he (2nd party) has not been given his dues. On these scores prayer is made to set aside the order of dismissal dated 18.11.1996 and to reinstate him with full back ages and with litigation cost of Rs.5000/ and any other relief to which he is found entitled."
3.3 Present respondent company filed its reply in response to the said statement of claim. The summary of company's reply is recorded by the learned Tribunal in paragraph No.4 of the award, which reads thus:
"4. As against this case of the corporation (1st party) is that the 2nd party Shri V.H. Rawal, joined the service of the corporation as an Engineering Assistant on 18.12.1978 at its Kandla installation and he subsequently sought for transfer to Ahmedabad Divisional Office and then at the relevant time he was working as an Engg. Asst. at Ahmedabad Divisional Office. The 2nd party was 4 C/SCA/3615/2015 JUDGMENT issued a charge sheet dated 08.06.1995 for the charges "Engaging unauthorised private trade, or doing private or personal work within the premises of the establishment during working hours with or without tools or materials belonging to the establishment without the prior permission of the competent Authority. A fair enquiry was conducted and principles of natural justice was followed and on the basis of evidences led and documents produced charge was proved as per enquiry report. The misconduct committed by the workman V.H. Rawal was of serious nature. Before taking disciplinary action 2nd show cause notice dated 22.04.1996 was given to the delinquent workman along with copy of enquiry report and the 2nd party workman submitted his representation to 2nd show cause on 05.07.1996. The corporation's rule and discipline and that goes to the root of the integrity of the delinquent and so dismissal order dated 05.11.1996 was issued. The corporation (1st party) has denied the allegation made as para 1 to 9 of the statement of claim. Alternative plea has also been taken at para 15 by the corporation that if the Tribunal comes to the conclusion that the enquiry held against the 2nd party workman was not in according to laid down principles of natural justice, then the charges levelled against the workman will be proved by the 1st party by leading proper evidence before this Tribunal. The contention of the 1st party is that the 2nd party workman is not entitled to get any relief in this case and the reference is fit to be rejected."
3.4 After completing the pleadings, the contesting parties led oral as well as documentary evidence. The record of domestic enquiry was also placed on record before the learned Tribunal.
3.5 The company placed on record of relevant documents, however, it did not lead evidence (oral evidence).
3.6 At this stage, it is pertinent to note that the claimant filed a purshis (Exh.10) dated 5 C/SCA/3615/2015 JUDGMENT 20.8.2001 whereby he declared that he does not challenge legality and propriety of the enquiry. However, he reserved the challenge against the finding of the Enquiry Officer so as to contend that the findings are incorrect and unjustified. 3.7 The learned Tribunal has recorded that the claimant's evidence came to be recorded at Exh.29 and that he led evidence only with regard to unemployment after dismissal from service and on the point that the order of penalty is harsh and excessive.
3.8 The claimant also clarified that he would attain age of superannuation in October 2010. 3.9 Upon conclusion of evidence, the learned Tribunal heard rival submissions and after considering the material available on record and rival contentions, the learned Tribunal reached to the conclusion that the claimant committed misconduct and 'the misconduct committed by the delinquent is very serious in nature'. The 6 C/SCA/3615/2015 JUDGMENT learned Tribunal also reached to the conclusion that 'the punishment of dismissal with immediate effect under 29.1 (g) of the Certified Standing Order of the Bharat Petroleum Corporation Limited does not appear to be harsh or disproportionate to the gravity of the proved misconduct of the delinquent'. Having reached such conclusion, the learned Tribunal held that there was no reason or justification to interfere with the order of penalty by invoking the authority under Section 11A of the Act.
3.10 From the award it also emerges that the learned Tribunal considered the fact that the misconduct is proved.
3.11 The learned Tribunal also considered the gravity and nature of misconduct and reached to the finding that it was not a fit case to exercise the authority under Section 11A. 3.12 Therefore, the learned Tribunal dismissed the reference.
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C/SCA/3615/2015 JUDGMENT 3.13 Feeling aggrieved by the said decision, the employee has filed present petition.
4. From the submissions by Mr.Mishra, learned advocate for the petitioner, it appears that before the learned Tribunal the claimant had concentrated only on one submission viz. the learned Tribunal should exercise authority under Section 11A.
4.1 Even before this Court Mr.Mishra, learned advocate for the petitioner contended that merely because the claimant admitted legality and propriety of the enquiry, it does not mean that the learned Tribunal cannot exercise authority under Section 11A of the Industrial Disputes Act. He submitted that the claimant had admitted legality of the enquiry but had kept the challenge against the findings of the Enquiry Officer open and alive and that, therefore, the learned Tribunal ought to have examined the legality and propriety of the findings. He 8 C/SCA/3615/2015 JUDGMENT submitted that the learned Tribunal committed error in recording the decision that since the legality of the enquiry is not disputed, the learned Tribunal cannot examine the findings. He submitted that the observation and decision recorded in paragraph No.10 of the award are incorrect and unjustified. So as to support his submission, learned advocate for the petitioner relied on the same decision on which he placed reliance before the learned Tribunal i.e. the decision in case of U.P. State Road Transport Corporation vs. Vinod Kumar [2008) 1 SCC 115 and the decision in case of Muljibhai Patel Urological Hospital vs. Arunaben I. Desai [(2009) 1 CLR 403]. Mr.Mishra, learned advocate for htre petitioner reiterated that it is a fit case to exercise authority under Section 11A of the Act and in light of the said provision, either this Court may interfere with the decision of penalty or the case may be remanded for fresh consideration with regard to the need for exercising power under Section 11A of the 9 C/SCA/3615/2015 JUDGMENT Industrial Disputes Act.
5. Mr.Shukla, learned advocate for the respondent company opposed the submissions. He submitted that the award does not suffer any error. He further submitted that the learned Tribunal has not committed any error in recording the observations and findings in paragraph No.10 of the award including the decision that since the claimant admitted legality of the enquiry, the learned Tribunal would not ordinarily examine the legality and propriety of the findings by the Enquiry Officer. He submitted that considering the gravity and nature of the misconduct, the petitioner is not entitled for benefit of Section 11A of the Act and even otherwise, in light of the facts of the case, there is no justification for the Court to invoke and take recourse under Section 11A of the Act. Learned advocate for the respondent company relied on the decision in case of Arjanbhai Haribhai Asodariya c/o State Transport Mazdoor vs. Divisional Manager [2017 10 C/SCA/3615/2015 JUDGMENT (2) GLR 1355 and the decision in case of Gujarat State Road Transport Corporation vs. Ravjibhai Maldebhai Vara [2017 (2) CLR 1002] and the decision by Hon'ble Apex Court in case of V. Ramana vs. APSRTC [(2005) 7 SCC 338].
6. I have considered rival submissions and material available on record and the impugned award.
7. As mentioned above, learned advocate for the petitioner reiterated and emphasised that in present case, the Court should exercise power under Section 11A. Of course, learned advocate for the petitioner also contended that merely because the claimant had admittedly legality and propriety of the enquiry, the learned Tribunal should not have refused to examine the legality or propriety of the findings recorded by the Enquiry Officer because the claimant had kept the said challenge open and the purshis filed by the claimant was restricted only to the conduct of the domestic enquiry. Any other contention is not 11 C/SCA/3615/2015 JUDGMENT raised by learned advocate for the claimant.
8. Ordinarily, in case of proved misconduct, the learned Tribunal would not be justified in exercising authority under Section 11A so as to disturb and set aside the employer's decision with regard to quantum of penalty. The learned Tribunal may, in a given case, interfere with the employer's decision with regard to quantum of penalty only if and only when it is established that the quantum of penalty determined by the employer is shockingly disproportionate or so excessive that it smacks of victimisation or its illogical and shocks the conscience of the Court.
8.1 Therefore, it would be necessary to examine as to whether the petitioner's case passes the said litmus test and qualifies for interference by the Court against the employer's decision with regard to quantum of penalty.
9. So as to examine the contentions, it would be 12 C/SCA/3615/2015 JUDGMENT appropriate to take into account the nature and substance of the misconduct / charge and as to whether the learned Tribunal has actually refused to consider the findings recorded by the Enquiry Officer as claimed by the petitioner.
10. Actually, in light of the facts and circumstances of present case, more particularly the fact that the claimant crossed age of superannuation as back as in 2010 and in view of the specific and detailed observations recorded by the learned Tribunal in the award, it is not necessary to enter into the issue as to whether the learned Tribunal can undertake the process of examining legality and propriety of the findings recorded by the Enquiry Officer after the legality and propriety of the enquiry is admitted.
11. So far as the award is concerned, it is relevant and necessary to mention that in light of rival contentions and the pleadings of the contesting parties, the learned Tribunal had 13 C/SCA/3615/2015 JUDGMENT framed 8 issues viz. "6. In view of the pleadings of the parties and the evidences adduced the following issue are taken upon for determination in this case: ISSUES
(i) Is the reference maintainable?
(ii) Has 2nd party workman V.H. Rawal valid cause of action to raise the dispute?
(iii) Whether the domestic enquiry held against the 2nd party workman is valid as per laid down principles of natural justice?
(iv) Whether the findings to report of the enquiry officer dated 10.04.1996 (Ext.20) is valid and proper? Whether the 2nd party has legal right to challenge the perversity of enquiry report even after submitting pursis Ext.10 as to admitting the domestic enquiry held against him and not challenging its propriety?
(v) Whether the order of punishment of dismissal from the services awarded by the Disciplinary Authority against the 2nd party is shockingly disproportionate to the gravity of charges levelled against the 2nd party workman?
(vi) Whether the 2nd party workman is entitled to get relief if any?
(vii) Whether the action of the management of the 1st party (corporation0 in dismissing Shri V.h. Rawal (workman) w.e.f. 18/11/1995 is legal and justified?
(viii) What orders are to be passed?"
The learned Tribunal has recorded specific findings with regard to each issue.
11.1 From the award, it also emerges that the learned Tribunal has recorded cogent, satisfactory and sufficient reasons in support of its decision with regard to each of the said 8 14 C/SCA/3615/2015 JUDGMENT issues.
12. Even learned advocate for the petitioner did not assail any findings or reasons recorded by the learned Tribunal with regard to any issue except the observations and conclusions recorded by the learned Tribunal in paragraph No.10 of the award.
13. Now, so far as the allegations / charge about misconduct are concerned, it has emerged from the record and from the chargesheet as well as the submissions that the petitioner herein, who was working with the respondent company as Engineering Assistant, engaged himself in activity of personal business. He used to contact customers of the company and used to offer his service to obtain, for those customers, permission / licence from the competent authority in the Department of Explosive Substance.
13.1 It is pertinent to note that the claimant (present petitioner) had even got himself 15 C/SCA/3615/2015 JUDGMENT registered with the competent authority and he had obtained authorisation / permission for himself viz. that he can issue certificate for licence under the Explosive Substances Act, 1908.
With the aid of such registration and authorisation.
13.2 The petitioner used to indulge in commercial / business activity during office hours and within the precinct and premises of the company.
14. Such conduct and action by an employee, being contrary to the certified standing orders of the company amount to misconduct.
15. When the details of the activities being carried on by the petitioner came to the notice of the company, a showcause notice and thereafter chargesheet came to be issued.
15.1 The petitioner was charged with allegation of misconduct viz. "Engaging in unauthorised private trade, or doing private or personal work within the premises of the establishment 16 C/SCA/3615/2015 JUDGMENT during working hours with or without tools or materials belonging to the establishment without the prior permission of the Competent Authority."
15.2 As mentioned above, the petitioner submitted replies in response to the showcause notice as well as the chargesheet. The said replies were not found satisfactory and therefore domestic enquiry was conducted. The Enquiry Officer conducted the domestic enquiry and upon conclusion of the enquiry, the Enquiry Officer submitted his report and findings to the Disciplinary Authority.
15.3 The report dated 2/10.4.1996 is available on record of present petition at AnnexureI, pages 56 to 67.
15.4 On examination of the said report, it comes out that the Enquiry Officer has extensively dealt with the evidence and the witnesses and the documents which were placed before him (on the record of the Enquiry Officer).
15.5 It also comes out that after recording 17 C/SCA/3615/2015 JUDGMENT evidence, the Enquiry Officer considered the statement and submission by the delinquent and the presenting officer.
15.6 In his report, the Enquiry Officer has summarised the case of the employer and the case / defence set up by the employee, which reads thus:
"MANAGEMENT'S CASE:
On 22.3.95, Shri Joshi of M/s Bhadran Seva Sahakari Mandli Limited visited Ahmedabad Division Office in connection with documents pertaining to Explsoives licence for a consumer pump. Mr.Rawal approached Mr.Joshi and offered his services to obtain the Explosives licence on the above party's behalf. Accordingly the party accepted his offer and all related papers and an amount of Rs.5000/ was sent to the residence of Mr. V.H. Rawal.
On 28.3.95 Mr. Rawal handed over to Mr. T.S. Ramakrishnan, Dy. Manager, Engineering a photocopy of the Explosives licence for M/s Bhadran Seva Sahakari Mandli Limited saying that he had obtained the same on behalf of the said party from Bombay on 27.3.95 when he went on casual leave. He was therefore charged as under:
Engaging in unauthorised private trade, or doing private or personal work within the premises of the establishment during working hours with or without tools or materials belonging to the establishment without the prior permission of the Competent Authority.
DEFENCE CASE:
The chargesheeted employee Shri V.H. Rawal had pleaded not guilty but he had declined to participate in the enquiry proceedings unless all documents were handed over to him in advance. All the documents submitted by the Management were given to the CSE during the course of the enquiry proceedings. Even after repeated communication to him to be present for the enquiry proceedings he refused to do so. Mr.Rawal had been given several opportunities to present his defence which he did not avail, despite all opposition. The CSE did not cross examine the Management witnesses nor led any evidence to defend his case therefore, I decided to conduct the proceedings ex parte."18
C/SCA/3615/2015 JUDGMENT 15.7 Having regard to the material available on record and rival submissions, the Enquiry Officer framed 2 issues for consideration. The said issues are:
"ISSUES TO BE CONSIDERED:
1. Whether the CSE received money from M/s Bhadran Seva Sahakari Mandli Ltd & obtained the Explosives licence for M/s Bhadran Seva Sahakari Mandli Ltd.
2. Whether CSE is engaged in unauthorised private trade or doing private or personal work within the premises of the establishment during working hours."
15.8 From the report of the Enquiry Officer, it also emerges that the Enquiry Officer has extensively dealt with the evidence and rival submissions and recorded his findings and conclusions with regard to each of the issues. The findings and conclusions recorded by the Enquiry Officer are supported by cogent and satisfactory reasons. The findings and analysis by the Enquiry Officer read thus:
"FINDINGS & ANALYSIS:
1. MW4 Shri N.R. Joshi, Manager Bhadran Seva Sahakari Mandli Ltd in his deposition stated that the CSE approached him at the Divisional Office on 22.3.95 and offered to obtain an Explosives licence and related works for a fee of Rs.8000/. The CSE also gave him a visiting card of PETROSIVES in the name of Shri H.C. Rawal, A1 Lalbhai Apartment, Kiran Park, Nava Wadaj, Ahmedabad 380 013, which is the residential address of the CSE as given by him in response to the CDM's note for submission of 19 C/SCA/3615/2015 JUDGMENT Residential address & phone no. In the evening on the same day, i.e. 22.3.95, the CSE agreed on the telephone to do the job for Rs.5000/ plus an additional amount of Rs.500/ to Rs.1000/. MW4 deposed having sent Shri R.C. Patel, a Clerk with M/s Bhadran Seva Sahakari Mandli Ltd with all relevant documents and Rs.5000/ to the address given in the visiting card.
MW5, Shri R.C. Patel corroborated that in the evening of 25.3.95 he met Shri V.H. Rawal, the CSE at his given address and handed over a file containing the documents & Rs.5000/.
2. MW4 in his deposition stated that either on 27.3 or 28.3 he was informed by the CSE that he had obtained the Explosives licence from Bombay. CSE further requested for an additional fee of Rs.500/ over and above the fee already paid to him. MW4 sent MW5 to collect the licence from CSE's residence.
MW5 corroborates that on 28.3.95 he once again visited the CSE's esidence to collect the Explosives licence when he was informed by the CSE that the file and the documents were in the Office. MNS accompanied CSE to the Office where the CSE took copies of he licence and handed over the original licence to MWS MWS further confirmed that he paid Rs.500/ additional fee to the CSE as per their understanding.
3. MW6 in his deposition stated that on 25.3.95 (Saturday) came to Office for some personal work and told MW6 that he not be attending Office on 27.3.95, CSE would as he had urgent work at Explosives Dept in Bombay. Inspite of the request of Mw6 to end office on 27.3.95 because of the workload, CSE insisted at he had to take leave and would not be attending office on 27.3.95 (Ref. Annexure XXIII CSE s leave application for 27.3.95) MW also produced Annexure XXVI, a visiting card of Petrosives, in the name of Shri H.C. Rawal, A1 Lalbhai Apartments, Kiran Park, Nava Wadaj, Ahmedabad 380 013. MW6 also sub mitted Annexure XxVCDM's circular which contained names & addresses of staff from Ahmedabad Division.
4. PO had produced in Session V annexure XVa letter from CCOE 's office No. P2 Design/CP dated 12.9.1995, giving a list of Engineers recognised by Chief Controller of Explosives, Nagpur as a competent person to sign certificates under Rules 126 &130 of Petroleum Rules 1976. This list amongst five other names also contained the name of Shri V.H. Rawal and the address given was A/1, Lalbhai Apartments, Kiran Park, Nava Vadaj, Ahmedabad 380 PO also submitted Annexure XVI, a letter from CCOE Bombay No. GJ. KAZ 325 dated 27.3.95 addressed to the Bhadran Seva Sah. Mandli Ltd for grant of licence. He further ated that the licence had been received by CSE on 27.3.95 013 W.C CSE's initials with the date are on the letter.
Based on the above, it is very clear that: 20
C/SCA/3615/2015 JUDGMENT
a) CSE received a sum of Rs.5500/ from M/s Bhadran
Seva Sahakari Mand1i Ltd for obtaining an Explosives licence.
b) It was CSE who obtained the licence for Bhadran Seva from CCOE% w. circle, Bombay on 27.3.95 (the day he had applied for. 1Eaave Ref. Annexure XXIV). This is also clear by his having acknowledged receipt of licence from CCOE's DepartmentRef. Annexure XVI containing CSE's initials.
c) Ref. Annexure XV CCOE's letter dated 12.9.95 giving a list of Engineers competent to sign certificates under Rules 126 & 130 of Petroleum Rules 1976. Mw2 in his deposition had specified that at Ahmedabad Divisional Office only Engineering Officers are persons authorised to sign certificates under Rules 126 130 of the Petroleum Rules 1976.
Though CSE was not an Engineering Officer, he on his own had got himself included and recognised by CCOE, Nagpur as a competent person to sign certificates under Rules 126 & 130 of Petroleum Rules 1976. This he did in order to conduct private trade. This trade was being conducted by him under the name & style of PETROSIVES." 15.9 In light of the said discussion, the Enquiry Officer reached to the final conclusion which is recorded in the report, which reads thus:
"CONCLUSION:
It is clear from the above, that CSE was given all possible opportunities / chances to represent and defend his case. However, he refused to participate and attend the enquiry proceeedings or to lead any evidence in his defence. In view of the fact that CSE did not present his witnesses / documents, my report is based on the evidence submitted by PO through his witnesses and documents produced during the enquiry. From this it has clearly emerged that the chargesheeted employee is guilty of the charge levelled against him vide chargesheet No.GM (WR)/3.7/CON dated 8.6.1995 issued by DGM (SALES) W.R. which is as follows:
Engaging in unauthorised private trade, or doing private or personal work within the premises of the establishment during working hours with or without tools or materials belonging to the establishment without the prior permission of the Competent Authority."
16. The learned Tribunal took into account the 21 C/SCA/3615/2015 JUDGMENT purshis filed by the workman whereby he admitted the legality and propriety of the enquiry. The said purshis is also available on record of present petition (AnnexureE, page 38). 16.1 With reference to the said purshis, learned advocate for the claimant would contend that the claimant had kept the challenge against the findings of the Enquiry Officer open and alive and that, therefore, the learned Tribunal should have examined the findings of the Enquiry Officer. Learned advocate for the petitioner would further submit that the observation by the learned Tribunal in paragraph No.10 of the award supports the case of the petitioner that the learned Tribunal did not examine the findings of the Enquiry Officer.
17. In view of the fact that from the award, it has emerged that the learned Tribunal has actually closely examined the findings of the Enquiry Officer and has also considered and discussed evidence of witnesses, the issue as to 22 C/SCA/3615/2015 JUDGMENT whether the learned Tribunal can examine the findings of the Enquiry Officer after the delinquent admits legality of the enquiry does not survive.
17.1 Even otherwise, in light of the decision by Hon'ble Apex Court in case of General Secretary, South Indian Cashew Factories Workers Union vs. Managing Director, Kerala State Cashew Development Corporation Ltd. [(2006) 5 SCC 201], the said objection does not survive and cannot be sustained.
18. However, since the learned advocate for the petitioner has raised the contention, it would be appropriate to take into account the observations recorded by the learned Tribunal in paragraph No.10 of the award which reads thus:
"10. It has been argued by the learned counsels for the 1st party corporation that in absence of any challenge to the correctness, legality or validity of the inquiry conducted, the Tribunal cannot go into findings recorded by the enquiry officer regarding the misconduct committed by the delinquent workman (2nd party) and also pointing towards Ext. 10 of the workman regarding not challenging the domestic enquiry held against him. Such arguments of the 1st party clearly finds support from the case law of UP State Road Transport Corporation vs. Vinod Kumar (2008 CLR 847 S.C.) and also from the case of Muljibhai Patel Urological Hospital vs. Arunaben I. Joshi (2009, CLR 403, 23 C/SCA/3615/2015 JUDGMENT Gujarat High Court). On the other hand Shri Azad Singh Parihar, the learned counsel appearing for the 2nd party could not file any befitting case law to support the stand that even after filing pursis (Ext.10) regarding not challenging the validity, correctness of domestic enquiry, the workman can take plea and challenge the perversity of findings of the enquiry officer as per report Ext. 20. So it is manifestly clear that the workman as per Ext.10 accepted the validity, correctness of domestic enquiry held against him and so he cannot blow hot and cold simultaneously in choosing perversity of findings of Enquiry officer as per Ext.20 in view of two case laws relied upon by the 1st party - 2008, CLR 84 and 2009, CLR 403 (supra)."
18.1 From the said observation it becomes clear that the allegation or submission that the learned Tribunal did not examine the findings of the Enquiry Officer and/or that the learned Tribunal proceeded in the case on the premise that the findings cannot be examined is factually not correct. The learned Tribunal has considered and extensively dealt with the findings and the report by the Enquiry Officer. Further, even if it is assumed, only for the sake of examining petitioner's contention, then also the discussion by the learned Tribunal brings out that the learned Tribunal has, in present case, actually considered the finding of the Enquiry Officer, weighed and analysed the same and after examining, scurtinising and appreciating the 24 C/SCA/3615/2015 JUDGMENT report and finding of the Enquiry Officer found that the findings and report are just and proper.
19. Besides this, the learned Tribunal itself reached to independent conclusion that the misconduct is proved.
19.1 The said aspect clearly and conclusively emerges from the observations, details and conclusions recorded by the learned Tribunal in paragraph Nos.7, 8 and 9 of the award, which read thus:
"7. ISSUE NO. iii and iv - Ext.12 is copy of the show cause notice dated 25.11.1995. Ext. 13 is reply of 20d party workman to show cause notice dated 08.05.1995. Ext. 14 is copy of the charge sheet dated 08.06.1995. Ext15 is Hindi version of the charge sheet dated 08.06.1995. Ext. 16 is explanation of workman V.H. Rawal to the charge sheet dated 27.06.1995. Ext 17 is order appointing Inquiry officer dated 08.06.1995. Ext.18 is order appointing presenting officer dated 08.06.1995. Ext. 19 is enquiry proceedings dated 29.06.1995 and onwards. Ext.
20 is report of the Inquiry officer dated 10.04.1996. Ext.21 is 2h show cause notice dated 22.04.1996 given to the delinquent workman V.H Rawal. Ext. 22 is written explanation in pursuance to the 2 nd show cause notice dated 05.07.1996. Ext. 23 is order of dismissal dated 05.11.1995 of the Disciplinary Authority along with covering letter dated 18.11.1996.
8. By filling Ext. 10 the 2nd party workman V.H. Rawal has not challenged the propriety of domestic enquiry held against him. Charge sheet dated 08.06.1995 levelled against V.H. Rawal (delinquent) is at Annexure (IV). From perusal of Ext16, it appears that the written explanation dated 27.06.1995 (Annexure II) asking for engaging Advocate as defence representative was not at all acceptable in domestic enquiry as per rules and condition of certified standing order and memorandum of settlement. Ext. 19 is the entire inquiry file commenced on 29,06.1995 where in the letter dated 27.06.1995 was 25 C/SCA/3615/2015 JUDGMENT taken and the workman attended and signed the inquiry proceedings. By letter dated 13.07.1995, the inquiry officer gave a detailed reply regarding objection raised by the workman in his letter dated 27.06.1995 and 05.07.1995. As regards documents, in para 2, it has been stated that all documents will be placed before you for inspection during the course of inquiry and that necessary time will also be given to you for preparation of defence. It was also clarified that the action initiated is in pursuance of certified standing orders. Its copy has been submitted by the 1" party C1.29.4 provides permitting the assistance of a co. employee but not permitting to engage advocate was rightly not granted. In the inquiry held on 02.08.1995, the workman was present and signed the proceedings. In the inquiry held on 05.09.1995, the workman was present and signed the proceedings. The inquiry officer stated that relevant documents will be submitted and at page 8, inquiry proceedings dated 10.09.1995 (P.10) workman was present and produced letter dated 19.09.1995 marked Annexure Xll mention about documents, statement of M.W.1 Neren N Shah is at page 10 of inquiry file who has distributorship of L.P.G. Bharat Petroleum Cop., Kubernagar, Ahmedabad. The workman who was present did not cross examine this M.W.1 though remained present and did not sign the proceedings inquiry proceeding dated 27.09.1995 (page 14) go to show that copy of these proceedings along with letter to workman dated 27.09.1995 (Annexure XII) by hand delivery. In the inquiry proceedings dated 28.09.1995 (page 15) workman was present. He stated that I have received copy of proceedings and letter stated that if documents are rot given in advance, I will not participate in the proceedings. in the inquiry proceedings dated 28.09.1995 (page 15) workman remain present but did not cross examine the management witness and the presenting officer proceed further in inquiry proceedings. From perusal of the enquiry proceedings it clearly reveals that documents were produced by the presenting officers during the statements of management witnesses T. Suryavanshi (M.W.2) letter no. P2 Design/cp. dated 12.09.1995 (Annexure XV) copy of letter issued by Dy Chief Controller of Explosives Bombay to Bhadra Seva Sahari Mandli Ltd. d/ 27.03.1995 (Annexure XVI. M.W.3 on 09.10.1995 (page 23) who was Sr. Manager, Ahmedabad Division Statement of M.W.4 N.R. Joshi, Manager Bhdran Seva Sahkari Mandli Ltd. was taken on 12.10.1995 (page 25) Annexure XIX Statement of R.C. Patel (M.W.5) clerk Bhadran Seva Sahkari Mandli Ltd. was taken on 12.10.1995 (page 28) Annexure XX and statement of T.S. Ramkrishnan (M.W.6) Dy. Manager Eng Ahmiedabad Division was also taken on 12.10.1995 (P.31) vide Annexure XVIII, AnnexureXIV, AnnexureXV.
9. Now coming to examine the evidence of the management witness in the inquiry proceedings. M.W.2 is T. Suryavanshi, He proved letter dated 12.09.1995 where name of workman V.H.Rawal appears at SL. No. 4. As per Annexure XVI licence granted in favour of Bhadran Seva Sahkari Mandli dated 22.03.1995 and signature of workman was identified. In the evidence of MW. 4 N.R. Joshi letter written by Mr. Joshi, visiting card of workman 26 C/SCA/3615/2015 JUDGMENT (V.H. Rawal) and photo copy of licence were proved. In the evidence of shri Ram Krishna (M.W.6) leave application of workman (V.H. Rawal) was proved and visiting card of workman Rawal was produced. The workman V.H. Rawal duly acknowledged the letters written by the inquiry officer dated 04.10.1995, 09.10.1995 (proceedings with Annexure) letter dated 12.10.1995 (inquiry proceedings with Annexures, letter dated 13.10.1995, letter dated 18.10.1995, letter dated 14.10.1995 (P.O.) intimated closed evidence requested to attend on 14.10.1995, letters dated 17.11.1995, letter dated 04.12.1995 and letter dated 16.01.1996."
20. At this stage, it is also relevant to take into account the observations and findings recorded by the learned Tribunal in paragraph Nos.12 to 15 of the award, which read thus:
"12. ISSUE NO.v: on behalf of the 2nd party one document (Annexure C) Annexure to the directors Report 201011 and some case laws have been filed vide list Ext33. Ext33/1 is two page Annual report for the year 201011, containing the names of 103 employees of Bharat Petroleum. On the basis of this Ext.33/1, the learned counsel for the workman argued that had the workman not been dismissed he would have served the corporation for 32 years date of joining 18.12.1978 and date of superannuation 31.10.2010 and might have been promoted to the post of manager/Sr. Manager and giving example of employee at SI. No 97, 92 and from SI No. 14, 58 who joined together with equal qualification are enjoying promotions. On the other hand Ms Meenaben Shah, Advocate for the 1* party (corporation) submitted written arguments with respect to Ext. 33/1 of the 2 party. Ext.36 is the written arguments of the 1 party to the effect that the present reference pertains to termination of the services of the 2d party and so the detail regarding promotion granted by the 1t party in Annexure to the Director's report is legally not maintainable and is extraneous. It has been submitted further in the written argument (Ext.36) that w.e.f. 1995 as per memorandum of settlement on promotion policy between the corporation and its workman promotion is granted from time to time based on eligibility criteria and other relevant selection parameters. Cadre is based on eligibility criteria mentioned therein. The promotion to the management cadre is solely based on selection on merit and not solely on 'seniority', as alleged. It has been submitted that the 2nd party workman (V.H. Rawal) had applied for promotion to the management cadre in the year 1980, 1983 and 1985 but he was not selected in merit for the promotion to management cadre. More so, as per example of employees Sr. No. 14 of Ext.33/1 he did not 27 C/SCA/3615/2015 JUDGMENT apply for promotion to management cadre was in workman cadre till his retirement," SI. No. 58 is still in non managerial staff. SI. No. 92 was management staff since recruitment and S.No. 97 got promotion in the management cadre after selection on merit.
13. The 2nd party has relied upon the case laws of (1) Novartis Indis Ltd. and State of West Bengal (2009 11 LU 9 SC) on point of burden of proving no alternative employment of workman shifted on employer after initial discharge by the workman (2) Reetu Marbles and Prabhakant Shukla (20101LU305)(SC)award of back wages upon termination of service is not automatic and cannot be granted mechanically. (3) Mahindra and Mahindra Ltd. and N.B. Narawada and others (20031LU Bombay 520) power under section 11A to be exercised by Labour Court only when satisfied that order of discharge or dismissal of workmen not Justified as being harsh... (4) Gujarat State Road Transport Corporation Vs. D.V. Chauhan (2006(2) G.L.H.64) regarding power of Labour Court under section 11A of the ID Act. 1
14. On the other hand, the 1st party has relied upon a case law of Central Bank of India Vs. Mavji C. Lakum (2003 13) G.L.R. 2116) that section 11A does not confer upon Labour Court, Tribunal to examine the punishment awarded to workman in order to make interference invariably rather such power u/s 11A can be exercised only when the decision of employer is perverse or punishment is so disproportionate that it would shock the Judicial conscience.
15. I have gone through the entire documentary evidence of the 1st party Ext.12 to 23. In view of the charge sheet as per Ext. 14 and 15 (English and Hindi version), the misconduct that was proved in domestic enquiry and as per findings to the inquiry report (Ext. 20) was of a serious nature as he (delinquent) had misused his office as an Engineering Assistant for private and personal trade of obtaining explosive licences for the customers of the corporation for his personal illegal gains. The workman V.H Rawal in order to run the business registered his name with the chief controller of Explosives as a competent person in spite of remaining in corporation service as Engg. Assistant and he engaged himself in his personal trade/business activities during working hours, and used to approach the corporation clients in their office for his personal business which totally subversive of the discipline of the corporation I have gone through the punishment order of the Disciplinary Authority at Ext. 23 and I find 'that the D.A. had rightly considered that the misconduct committed by the delinquent is very serious in nature and so the punishment of dismissal with immediate effect under 29.1(g) of the certified standing order of the Bharat Petroleum Corp. Ltd does not appear to be harsh or disproportionate to the gravity of proved misconduct of the delinquent under the charge sheet Ext.14. English version, Ext. 15 Hindi version. So I do not find any reason to interfere in the order of punishment by invoking the power under section 11A of 28 C/SCA/3615/2015 JUDGMENT the I.D. Act. More so, the evidence of the workman that he remained unemployed after dismissal does not hold good for making interference in the punishment awarded to him by the D.A. and to substitute any lesser punishment to him. More so, as per oral deposition of workman vide Ext.29 vide para 6 he has already crossed the age of superannuation on 31.10.2010 much before his evidence. The case laws relied upon by the 2nd party are not applicable in the instant case."
20.1 From the said observations it emerges that the learned Tribunal has, on detail and excessive examination, reached to the conclusion that the misconduct is proved.
21. At this stage, it would be appropriate to take into account the decision by Hon'ble Apex Court in the case of General Secretary, South Indian Cashew Factories Workers Union vs. Managing Director, Kerala State Cashew Development Corporation Ltd. [(2006) 5 SCC 201], where Hon'ble Apex Court observed that:
"16. The Labour Court had earlier held that the enquiry was properly held and there was no violation of the principles of natural justice and that the findings were not perverse. The vitiating facts found by the Labour Court against the enquiry are erroneous and are liable to be set aside. If enquiry is fair and proper, in the absence of any allegations of victimization or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed. Section 11A of the Act gives ample power to the Labour Court to re appraise the evidence adduced in the enquiry and also sit in appeal over the decision of the employer in imposing punishment. Section 11A of the Industrial Disputes Act is only applicable in the case of dismissal or discharge of a workman as clearly mentioned in the Section itself. Before the introduction of Section 11A in Indian Iron and Steel Co. Ltd. v. Their Workmen [(1958) SCR 667] this 29 C/SCA/3615/2015 JUDGMENT Court held that the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the Management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management. There is no allegation of unfair labour practice, victimisation etc. in this case. The powers of the Labour Court in the absence of Section 11A is illustrated by this Court in Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management [(1973) 1 SCC 813]. When enquiry was conducted fairly and properly, in the absence of any of the allegations of victimisation or malafides or unfair labour practice, Labour Court has no power to interfere with the punishment imposed by the management. Since Section 11A is not applicable, Labour Court has no power to reappraise the evidence to find out whether the findings of the enquiry officer are correct or not or whether the punishment imposed is adequate or not. Of course, Labour Court can interfere with the findings if the findings are perverse. But, here there is a clear finding that the findings are not perverse and principles of natural justice were complied with while conducting enquiry."
In case of Management of Bharat Heavy Electricals Ltd. v. M. Mani [(2018) 1 SCC 285] wherein Hon'ble Apex Court observed, inter alia, that:
"18. In our opinion, once the Labour Court upheld the departmental enquiry as being legal and proper then the only question that survived for consideration before the Labour Court was whether the punishment of "dismissal"
imposed by the appellant to the respondents was legal and proper or it requires any interference in its quantum.
19. In other words, the Labour Court should have then confined its enquiry to examine only one limited question as to whether the punishment given to the respondents was, in any way, disproportionate to the gravity of the charge levelled against them and this, the Labour Court should have examined by taking recourse to the provisions of Section 11A of the Industrial Disputes Act, 1947 (in short "the Act") and the law laid down by this Court in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. It was, however, not done thereby rendering the order of the Labour Court legally unsustainable." (Emphasis supplied)
22. In light of the said observations it becomes 30 C/SCA/3615/2015 JUDGMENT clear that the petitioner's submission (that the learned Tribunal did not examine the findings of the Enquiry Officer) is unjustified and unsustainable and the said decision cannot be faulted.
23. On this count it is pertinent to note that in present case, the learned Tribunal has examined the matter from all perspectives including the examination o fhte report of the Enquiry Officer and reached to the conclusion that -
(i) the misconduct is proved;
(ii) the misconduct is of serious nature;
(iii) the quantum of penalty determined by the employer is neither harsh nor disproportionate to the gravity of proved misconduct of the workman.
24. The learned Tribunal has also dealt with the petitioner's contention that (it is a fit case to exercise power under Section 11A) and held that 31 C/SCA/3615/2015 JUDGMENT there is no justification to exercise said power and discretion and to upset the penalty (i.e. the employer's decision).
25. From the facts and circumstances of the case, this Court has found that the allegation that the claimant indulged in commercial / business activity on the premise of and in the precincts of the company that too without prior permission from the competent authority and the said conduct amounts to misconduct.
26. The decision by the learned Tribunal that the said - proved misconduct is of serious nature, cannot be faulted. By stretch of any imagination, the said misconduct cannot be considered lightly or casually.
27. If such misconduct is ignored, it would give rise to indiscipline amongst other employees and more and more number of employees may venture to indulge in similar kind of and personal practice which would adversely affect the discipline and 32 C/SCA/3615/2015 JUDGMENT cause harm to the working and operation of the company as well as daytoday activities. This may, in turn, also affect interest of other customers as well. Undisputedly, such conduct cannot be countenanced or tolerated.
28. When the learned Tribunal, having regard to this position, refused to exercise power under Section 11A, the said decision cannot be faulted.
29. In light of certain allegations made by the claimant (about alleged nonpayment of terminal benefits), this Court, so as to satisfy itself, inquired with the learned advocate for the company as to whether the terminal benefits (which should be paid to an employee according to the Rules of the company, more particularly gratuity) have been paid or not.
30. In light of a communication, learned advocate for the company clarified that the amount payable towards gratuity, leave encashment and other terminal benefits are already paid to the 33 C/SCA/3615/2015 JUDGMENT claimant.
31. It has also emerged from the record that the claimant crossed the age of superannuation in October 2010.
32. On overall consideration of the facts and circumstances of the case and in light of the findings, conclusions and reasons recorded by the learned Tribunal, any ground to interfere with the award is not made out.
33. The petition fails and deserves to be rejected and is accordingly rejected. Rule is discharged. Adinterim relief, if any, stands vacated forthwith.
Sd/ (K.M.THAKER, J) BHARAT 34