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Gujarat High Court · body

2016 DIGILAW 1267 (GUJ)

C. T. M. Textile Mills v. Mohan Parameshwar

2016-07-07

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Master, learned advocate for the petitioner. Though served, none has appeared for the respondent. 2. In present petition, the petitioner company has challenged two orders passed by the learned Labour Court and learned appellate Court recording concurrent findings as well as concurrent decisions. 2.1 In this petition, the petitioner company has challenged judgment and order dated 22.6.2001 passed by the learned Labour Court in IT Application No. 206 of 1986 whereby the learned Labour Court directed the petitioner company to reinstate the respondent in service on his original post with continuity of service and 50% backwages. 2.2 The petitioner company has also challenged judgment and order dated 6.7.2004 passed by the learned Industrial Court in Appeal (IC) No. 83 of 2001 whereby the learned Industrial Court rejected the appeal with cost and confirmed judgment and order dated 22.6.2001 passed by the learned Labour Court in IT Application No. 206 of 1986. 3. So far as relevant facts are concerned, it has emerged from the record that the service of the respondent was terminated by dismissal order dated 12.3.1996. 3.1 The respondent came to be dismissed pursuant to an ex-parte domestic inquiry in connection with certain allegations against the conduct and behaviour of the respondent while on duty. 3.2 Feeling aggrieved by the dismissal order, the respondent herein initiated proceedings before the learned Labour Court by invoking provisions under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946 which was registered as IT Application No. 206 of 1986. In his statement of claim, the respondent herein i.e. the claimant alleged that on incorrect and concocted allegations, his service was terminated without affording reasonable opportunity of hearing. The claimant alleged that the so-called domestic inquiry was conducted in violation of principles of natural justice and though the allegations were not proved, the employer dismissed him from service. On such allegations, the claimant demanded that he should be reinstated with full backwages. 3.3 The opponent employer (i.e. present petitioner) opposed the said proceedings by filing its written statement. In its written statement, the opponent employer claimed that several complaints were received against and the claimant and it was also alleged that he was rude with his superiors. It was also alleged that the claimant was very irregular and by his conduct he caused monetary loss and damages to the company. In its written statement, the opponent employer claimed that several complaints were received against and the claimant and it was also alleged that he was rude with his superiors. It was also alleged that the claimant was very irregular and by his conduct he caused monetary loss and damages to the company. It was claimed that since misconducts of serious nature were reported against the claimant, he was visited with a charge-sheet and pursuant to the said charge-sheet, domestic inquiry was conducted. It was alleged in the charge-sheet that he had torned and destroyed the screen of the rotating machine and he had set the speed of the machine at 60 rotation instead of 40 rotation which was required and ideal speed and because of increased speed the said machine and its screen were damaged and when superior officer Mr. Tyagi asked him to reduce the speed, the claimant insulted the superior officer and told him that he would work according to his own mood and convenience and he would not follow his (i.e. Superior's) instructions. The opponent employer claimed that despite the fact that despite several notices asking the respondent to remain present during hearing, he did not attend the domestic inquiry proceedings before the inquiry officer and that therefore, the inquiry officer was compelled to conduct and complete the inquiry in absence of the respondent. It was also submitted that the inquiry officer has recorded conclusion that the allegations against the claimant are proved and that therefore, the respondent was dismissed for service. 3.4 After the pleadings were completed, the parties led evidence. Thereafter, the learned Labour Court passed the judgment dated 22.6.2001 whereby the learned Labour Court directed the petitioner to reinstate the respondent in service with 50% backwages. 3.5 Feeling aggrieved by the said judgment, the petitioner company had filed appeal before the learned Industrial Court which also came to be rejected and the learned Industrial Court by its judgment dated 6.7.2004 confirmed the judgment passed by the learned Labour Court. 4. Mr. Master, learned advocate for the petitioner company, vehemently assailed the judgments passed by the learned Labour Court as well as the learned Industrial Court. He submitted that the learned Courts failed to appreciate that the respondent was guilty of misconduct. 4. Mr. Master, learned advocate for the petitioner company, vehemently assailed the judgments passed by the learned Labour Court as well as the learned Industrial Court. He submitted that the learned Courts failed to appreciate that the respondent was guilty of misconduct. He also submitted that the respondent had deliberately caused damage to the company's property i.e. the rotating machine and the screen used in the rotating machine. He submitted that the machine's cost is Rs. 20 Lakhs whereas the cost of one screen at the relevant time was Rs. 1000 and the said property was damaged by the respondent. He also submitted that when the respondent was reprimanded, the superior who asked him to run the said machine according to specified speed, the respondent had insulted the said officer and continued with his practice of running the machine with higher speed. Learned advocate for the petitioner submitted that for such misconduct, the respondent was visited with charge-sheet and domestic inquiry was conducted wherein, according to the report of the inquiry officer, allegations are proved and that therefore, the learned Labour Court ought not have interfered with the company's decision to terminate the respondent. Mr. Master, learned advocate for the petitioner, also submitted that the learned Labour Court and the learned Industrial Court failed to appreciate that during the proceedings before the learned Labour Court the company had submitted that without prejudice to its contention, the company is ready to reinstate the respondent if the respondent is willing to resume his duty and in that view of the matter, the direction to pay 50% backwages should not have been passed. Learned advocate for the petitioner also assailed the direction to reinstate the respondent and submitted that the direction to reinstate such indisciplined workman is not justified. 5. As mentioned earlier, the respondent is not present. Despite notice by the Court, no one has entered appearance. 6. I have considered the submissions by learned advocate for the petitioner and the material available on record. I have also taken into account the claim of the respondent as mentioned in his statement of claim and also considered other material on record including the impugned judgments by the learned Labour Court and the learned Industrial Court. 7. From the record and from the submissions by Mr. I have also taken into account the claim of the respondent as mentioned in his statement of claim and also considered other material on record including the impugned judgments by the learned Labour Court and the learned Industrial Court. 7. From the record and from the submissions by Mr. Master, learned advocate for the petitioner, it has emerged that the petitioner company itself had admitted before the learned counsel that the inquiry was defective. The petitioner company had filed a purshis and accepted that the inquiry is defective and that therefore, the company may be granted opportunity to prove the allegations before the learned Court. 7.1 In that view of the matter, the domestic inquiry was treated as defective and the company was granted opportunity to prove the charges and allegations against the respondent. 7.2 After considering the evidence which was placed on record by the petitioner company, the learned Labour Court recorded the conclusion viz. the company failed to establish the allegations against the respondent. Having reached such findings of fact and conclusion, the learned Labour Court held that the respondent's termination was invalid and unjustified. 7.3 The said findings of fact is confirmed by the learned Industrial Court as well. 8. Under the circumstances, this Court would not sit in appeal over the findings of fact recorded by the learned Labour Court and confirmed by the learned Industrial Court. This Court would not enter into the process of re-appreciating the evidence and recording different conclusion. 8.1 At this stage it is necessary to take into account Hon'ble Apex Court's observation in Mohd. Yunus vs. Mohd. Mustaqim ( AIR 1984 SC 38 ) wherein it is observed that:- "7. The supervisory jurisdiction conferred on the High Courts udder Art. 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision." 8.2 Consequently, the petitioner's grievance against the impugned judgments is required to be examined in light of the conclusion by the learned Labour Court and the learned Industrial Court viz. that the allegations/charge against the respondent/claimant are not proved. 9. Ordinarily, when the very foundation and base or the ground on which the service of the workman is terminated is found defective and unsustainable, the consequences viz. to direct the employer to reinstate the workman who was illegally terminated in service on his original post with consequential benefits, should follow. [Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) 2013 (10) SCC 324 ]. 9.1 In present case also, it is found that the allegations/charge against the concerned workman are not proved and that therefore the learned Labour Court's finding that the order of termination is defective and unsustainable cannot be faulted. 9.2 Now, when the conclusion with regard to the dismissal order is upheld, the question arises with regard to appropriate remedy. 10. The learned Labour Court directed the company to reinstate the respondent with continuity of service and 50% backwages. 10.1 On this count, it is relevant to note that the total length of respondent's service with the petitioner company prior to dismissal order dated 12.3.1986 was of about 2 years, inasmuch as even according to the respondent, he had joined the service with the petitioner company w.e.f. 6.5.1984 whereas his service came to be terminated by dismissal order dated 12.3.1986. 10.2 It is also relevant to note that after having filed the written statement the petitioner company had filed purshis on 18.3.1988 and stated before the learned Labour Court that without prejudice to its contentions in the written statement and while keeping all contentions open and subject to the result of the IT Application No. 206 of 1986, it is ready and willing to reinstate the respondent in service if he is willing to report for and resume his duty. 10.3 It is the case of the petitioner that despite the said clear intimation vide purshis dated 18.3.1988, the respondent did not report for work. 11. So far as the said purshis dated 18.3.1988 is concerned, the learned Labour Court has dealt with the said aspect and recorded in the judgment dated 22.6.2001 that by the said purshis dated 18.3.1988, the company had declared that it was ready to appoint the respondent with fresh appointment and against that condition the workman had put a note/remark on the purshis that if the company is ready to reinstate him, then, he would resume his duties. The learned Labour Court has also recorded that after such remark by the respondent, any order by the Court was not passed and the dispute/difference between the parties were not resolved. 12. Mr. Master, learned advocate for the petitioner, would submit that in view of the said remark by the respondent, the petitioner had submitted another purshis dated 18.3.1988 itself. 12.1 However, the learned Labour Court has, in the judgment dated 22.6.2010 recorded that after the workman put the remark in the purshsis dated 18.3.1988, the petitioner company did not submit any written application that without prejudice to its contentions, it was ready to reinstate the workman and that until the proceedings were concluded, i.e. final arguments were heard, any submission or request asking the respondent to report for duty was not made/submitted by the petitioner company. 12.2 Having considered the said material and conduct of the petitioner company, the learned Labour Court has recorded a specific observation in the award that the company seems to have submitted the said purshis dated 18.3.1988 only for sake of formality and creating material opposing the demand for backwages. 13. 12.2 Having considered the said material and conduct of the petitioner company, the learned Labour Court has recorded a specific observation in the award that the company seems to have submitted the said purshis dated 18.3.1988 only for sake of formality and creating material opposing the demand for backwages. 13. The learned Labour Court has extensively dealt with the aspects related to the said purshis dated 18.3.1988 and recorded detailed reasons in the judgment dated 22.6.2001 and with cogent reasons, the learned Labour Court has recorded that the petitioner company has failed to make out any ground, even on the strength of the pursis dated 18.3.1988 for denying wages for the period after 18.3.1988. 14. In this background the said purshis does not inspire confidence and the observations and conclusions by the labour Court cannot be faulted and cannot be ignored. 15. Consequently the submissions based on the purshis cannot be accepted and sustained. 16. In light of the said observations and findings by the learned Labour Court, it becomes clear that the learned advocate for the petitioner has failed to point out any material which would convince this Court to take view different from the view taken by the learned Labour Court with regard to the workman's demand for wages after 18.3.1988. 16.1 Except relying on the decision in case of M/s. Purafil Engineers, Pune vs. Shaikh Anwar Abdul Rahman [2000 LLR 268] and the decision in case of M/s. Suja Agency vs. Uday Singh B. Rawat [2003 Labour & I.C. 2810], learned advocate for the petitioner could not point out any material in support of his contention that the petitioner had asked the respondent to report for duty. 16.2 So far as the said decisions are concerned, the Bombay High Court has, in the said two decisions, held that where the offer to reinstate the workman is made but such offer is not accepted by the workman then he will not be entitled to get any wages from the date of the offer. 16.3 Undoubtedly when the workman does not accept the offer of being reinstated without prejudice to the contentions and subject to the final decision by the Court, the demand for backwages would not be justified and should not be granted. 16.3 Undoubtedly when the workman does not accept the offer of being reinstated without prejudice to the contentions and subject to the final decision by the Court, the demand for backwages would not be justified and should not be granted. 16.4 However, in present case, it is noticed that the learned Labour Court has dealt with the aspect related to purshis dated 18.3.1988 and any material which could successfully assail the observation and findings by the learned Labour Court is not shown from the record of the petition. 16.5 As his last effort learned Counsel for the petitioner relied on the order dated 26.4.2005 which this Court passed while admitting the petition. Learned advocate for the petitioner submitted that in the said order dated 26.4.2005 the Court, at the request of the company, again directed the respondent to resume his duty within 15 days. However, even after said order, the respondent did not report for duty. 17. In this background learned advocate for the petitioner opposed the direction to pay 50% backwages. 18. It is pertinent to note that so far as the said purshis dated 18.3.1988 and subsequent purshish are concerned, learned Labour Court and learned Industrial Court have recorded concurrent findings of fact that the said offer by the petitioner company was not bona fide and was made only with a view to making a pretense with object of creating platform of demand for wages. 19. Except order dated 26.4.2005 passed by this Court directing the respondent to resume duty wherein this Court observed that:- "Learned advocate for the petitioner has narrated in detail the nature of the charge, evidence documentary as well as oral and behaviour of the respondent employee when he was working with the petitioner. Learned advocate for the petitioner submitted that the petitioner is ready and willing to reinstate the respondent employee though the behaviour of the respondent-employee was absolutely rude towards his superior. It is submitted by the learned advocate for the petitioner that the respondent - employee was absent during the inquiry though registered A.D. notices were served to him. He has submitted that if the respondent-employee is ready and willing to resume his duty with the petitioner within 15 days from today, the petitioner has no objection. It is submitted by the learned advocate for the petitioner that the respondent - employee was absent during the inquiry though registered A.D. notices were served to him. He has submitted that if the respondent-employee is ready and willing to resume his duty with the petitioner within 15 days from today, the petitioner has no objection. Learned advocate for the petitioner has also conveyed that if the respondent - employee wants to resume his duty with the petitioner, he can resume his duty on or before 9-5-2005. It is for the respondent to accept the aforesaid offer." and the petitioner's submission that even after said order the respondent had not resumed duty, there is nothing on record to convince the Court to disregard the observation and conclusion recorded by the learned Labour Court as well as learned Industrial Court and that therefore the decision on which the petitioner relied, do not help the case of the petitioner in present case. 20. The facts of present case stand on different footing in light of specific findings and observations by learned Labour Court as well as learned Industrial Court. 21. Besides, this aspect can be considered from another perspective i.e. the submission by the learned advocate for the petitioner that before the learned Industrial Court the petitioner had submitted an application on 16.2.2004 and submitted that the respondent may report for duty and resume his work from next day i.e. 17.2.2004 and that necessary instruction by the factory manager was conveyed to the security officer (i.e. to allow the respondent to report for and resume his duty). The learned advocate for the petitioner further submitted that on 17.2.2004 the respondent workman had reported for duty and he was asked to work on particular machine which he refused to work and therefore he was assigned work on another machine and there also he did not perform his duty and after moving from one department to another he left the factory after about an hour. 22. Even if the said allegation is presumed to be true and the application dated 17.2.2004 submitted by the petitioner is taken into account, that would dis-entitle the respondent from claiming wages on and from 17.2.2004. However, said application would not wipe out the petitioner's obligation to pay wages up to the date of the judgment by the learned Labour Court i.e. 22.6.2001. However, said application would not wipe out the petitioner's obligation to pay wages up to the date of the judgment by the learned Labour Court i.e. 22.6.2001. 22.1 It is pertinent to note that the learned Labour Court's decision is dated 22.6.2001 whereas abovementioned application before learned Industrial Court on which the learned advocate for the petitioner relied was submitted on 17.2.2004 i.e. after almost 3 years (though the appeal was filed in 2001). 22.2 Having regard to above discussed aspects the Court is not inclined to interfere with the direction passed by learned Labour Court with regard to backwages. With the aforesaid clarifications the petition is rejected and accordingly the petition is disposed of. Rule is discharged. Orders accordingly.