Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 233 (GUJ)

Shailesh Surgicals v. Kaileshbhai Rameshbhai Rana

2016-02-02

K.M.THAKER

body2016
JUDGMENT: K.M. Thaker, J. 1. Heard Mr. Pratik P. Thakkar, learned advocate for the petitioner and Mr. U.T. Mishra, learned advocate for the respondent. 2. The petitioner has challenged the award dated 4.5.2007 passed by the learned labour Court at Ahmedabad in Reference (LCA) No. 1744 of 2000 whereby learned labour Court directed the petitioner to reinstate the respondent in service with continuity of service and to pay 60% backwages. 3. So far as factual background is concerned, it has emerged from the record and from the submissions by learned advocates for the petitioner and respondent that the respondent was visited with the chargesheet dated 6.3.2000. 3.1 The petitioner employer alleged, in the chargesheet dated 6.3.2000 that at about 3.30 p.m. on 4.3.2000 when the respondent was on duty he misbehaved with the women employee of the company and he also insulted the Supervisor. 3.2 It was also alleged that he was under influence of liquor and under such influence he misbehaved with co-employee as well as Supervisor and he locked his residential quarter/room and threw the key and left the premises and thereafter did not return to report for duty. 3.3 The respondent submitted his reply in response to the said show-cause-notice/chargesheet vide communication dated 1.4.2000. 3.4 In his reply the respondent claimed that the entire show-cause-notice/chargesheet was baseless inasmuch as he was not on duty at 3.30 p.m. on 4.3.2000 and actually at that time he was off duty since his duty hours/shift ended at 12.00 p.m. He also claimed that actually the chargesheet was an attempt of the petitioner to terminate his service on false and concocted ground. 3.5 After considering the said reply of the respondent workman, the petitioner initiated and conducted domestic inquiry in pursuance of the chargesheet dated 6.3.2000. 3.6 Upon conclusion of inquiry the Inquiry Officer submitted his report/findings dated 24.5.2000 holding, inter alia, that the charge and allegations against the petitioner are proved. 3.7 After considering the said report by the Inquiry Officer, the disciplinary authority issued show-cause-notice to respondent workman to show cause as to why he should not be dismissed from the service. 3.8 The respondent submitted his reply dated 31.5.2000 in response to the said notice dated 27.5.2000 wherein he claimed that the inquiry was conducted in violation of principles of natural justice and he was not allowed reasonable opportunity of defence and hearing. 3.8 The respondent submitted his reply dated 31.5.2000 in response to the said notice dated 27.5.2000 wherein he claimed that the inquiry was conducted in violation of principles of natural justice and he was not allowed reasonable opportunity of defence and hearing. 3.9 After considering the response/reply by the respondent workman the petitioner passed order dated 10.6.2000 and terminated the service of the respondent. 3.10 Upon feeling aggrieved by the said order dated 10.6.2000 the respondent raised industrial dispute which was referred for adjudication to learned labour Court at Ahmedabad. The said reference came to be registered as Reference (LCA) No. 1744 of 2000. 3.11 During the proceedings before the learned labour Court the respondent filed his statement of claim alleging, inter alia, that his service was terminated illegally and arbitrarily and inquiry was conducted in violation of principles of natural justice and he was not allowed reasonable and sufficient opportunity of hearing and defence. 4. The petitioner opposed said reference. In its reply/written statement the petitioner reiterated the allegations levelled against the respondent vide chargesheet dated 6.3.2000. The petitioner claimed that the respondent workman was found guilty of misconduct and his service was terminated after conducting domestic inquiry. The petitioner also claimed that the charge against the respondent is proved and having regard to the nature and gravity of the misconduct it was considered appropriate to terminate the service of the respondent who was working as 'Watchman' at the relevant time. Therefore, vide order dated 10.6.2000 his service came to be terminated. 5. The respondent workman claimed before learned labour Court that the domestic inquiry conducted against him was not conducted in accordance with the principles of natural justice. 5.1 Therefore the learned labour Court decided the issue and objection with regard to the legality and propriety of the domestic inquiry, as preliminary issue. 5.2 After considering the record of the domestic inquiry and submissions by learned advocate for the petitioner company and learned advocate for the respondent workman, the learned labour Court reached to the conclusion that the domestic inquiry conducted against the respondent workman in pursuance of the chargesheet dated 6.3.2000 was not conducted in accordance with the principles of natural justice and the respondent was not granted proper and sufficient opportunity of hearing and defence and the domestic inquiry against the respondent was defective and in violation of principles of natural justice. 5.3 Having regard to the request made by the petitioner, the learned Court granted permission to the petitioner to prove the charge against the respondent, before the Court. 5.4 In pursuance of such permission the petitioner examined one Mr. J.M. Darbar, Supervisor as its witness. The petitioner also examined one Ms. D.R. Shah as its second witness. The evidence of the respondent workman was also recorded. 5.5 In his evidence before the learned Court the respondent claimed that he was working with the petitioner as 'watchman' since 16 years and that the petitioner company had on and from 4.4.2000 stopped him from reporting for duty and duty was not assigned to him. He also claimed that his service was terminated vide order dated 10.6.2000 however he was not allowed to work from 4.4.2000. 6. Learned labour Court considered the evidence and reached to the conclusion that the petitioner failed to establish the charge levelled against the respondent. 7. Having reached such conclusion learned labour Court also held that the termination of the respondent's service was illegal and arbitrary. 7.1 In view of such conclusion learned labour Court directed the petitioner to reinstate the respondent. 7.2 Learned labour Court considered the issue of backwages and on the premise that the workman could not have remained unemployed and instead of granting 100% backwages and learned labour Court directed the petitioner to pay 60% backwages to the respondent. 8. Mr. Thakkar, learned advocate for the petitioner assailed the award and submitted that the learned labour Court had committed error in appreciating the evidence of the two witnesses examined before the learned labour Court. He also submitted that the learned labour Court has misread and misconstrued the evidence of the two witnesses. He further submitted that the charge levelled against the respondent is proved however, learned labour Court erroneously held that the charge is not proved. He also submitted that the witnesses Ms. D.R. Shah and also Mr. Darbar have said in their deposition that the respondent workman had used filthy language during his quarrel with Mr. Darbar and though he was asked not to use such language as women employees were on duty in the premises, the respondent continued to use filthy and foul language and also abused and insulted the supervisor i.e. Mr. Darbar. Mr. Darbar have said in their deposition that the respondent workman had used filthy language during his quarrel with Mr. Darbar and though he was asked not to use such language as women employees were on duty in the premises, the respondent continued to use filthy and foul language and also abused and insulted the supervisor i.e. Mr. Darbar. Mr. Thakkar, learned advocate for the petitioner submitted that learned labour Court failed to take into account said evidence and therefore impugned award is bad in law and not sustainable. 9. Mr. U.T. Mishra, learned advocate for the respondent workman submitted that the learned labour Court has not committed any error in holding that the charge is not proved. He also submitted that learned labour Court has, after examining the evidence on record, observed in the award that the petitioner's own witness admitted that the respondent workman had not misbehaved with the women employees and that therefore the charge levelled vide show-cause-notice/chargesheet dated 6.3.2000 cannot be considered as proved. Mr. Mishra, learned advocate for the respondent submitted that the findings and conclusions recorded by learned labour Court are based on proper and correct appreciation of evidence of two witnesses of the company and evidence of the respondent workman and conclusion do not suffer from any error and learned labour Court neither misconstrued nor misread the evidence as claimed by the petitioner employer. He submitted that there is no error in the award and the petition deserves to be rejected. 10. I have considered the submissions by learned advocates for the petitioner and respondent. I have also considered the material or record. 11. At the outset it is necessary and relevant to mention that during his submission learned advocate for the petitioner employer submitted that the respondent workman had used filthy and foul language and had abused and insulted Supervisor. 11.1 However when the chargesheet dated 6.3.2000 is examined, it comes out that the chargesheet dated 6.3.2000 is absolutely vague and any specific allegations specifically and exactly stating what the respondent workman had said and how he had addressed the supervisor or what had he spoken to or in presence of any female employee is not even mentioned in the chargesheet dated 6.3.2000. 11.2 All what is mentioned in the chargesheet dated 6.3.2000 is that the respondent misbehaved with the women employees and members of staff. 11.2 All what is mentioned in the chargesheet dated 6.3.2000 is that the respondent misbehaved with the women employees and members of staff. It is not even alleged that "filthy" and/or "foul" language was used. 11.3 In this context, when the evidence of Ms. D.R. Shah is taken into account it comes out that the said witness has mentioned in his deposition that she was standing far away at distance from the place where the incident between the respondent and Mr. Darbar, Supervisor took place. She also accepted in her evidence that she did not remember filthy or foul language allegedly used by the respondent. She also accepted that she had come out from the premises after the incident had started. She also accepted that it was only from the manner in which the respondent was talking with the Supervisor that she presumed that he was under influence of liquor. 11.4 It is pertinent that in her deposition the said witness Ms. D.R. Shah has not mentioned that any other woman employee had come out from the premises and/or at the place of incident any other women employees were present and/or that the respondent workman entered into the premises where women employees were sitting/working. 11.5 In this view of the matter, learned labour Court is right and justified in holding that the charge that the respondent workman misbehaved with women employees and members of the staff cannot be held as proved. 11.6 On this count it is also relevant to note that the prime and star witness of the petitioner company Mr. J.M. Darbar, Supervisor (i.e. the person with whom the respondent took up tussle) has, himself accepted and admitted in his deposition/cross-examination that at the time when the incident allegedly occurred the respondent was not on duty and his duty hours were over at 12.00 hours whereas the incident occurred at bout 3.00/3.30 p.m). 11.7 The said witness Mr. Darbar also accepted and admitted during his cross examination that the respondent had not extended into argument or any tussle with him and they (i.e. the said witness and the respondent) had not entered into any altercation. 11.8 The said witness Mr. Darbar also accepted in the cross examination that the respondent workman had not misbehave with any woman employee of the company. 12. 11.8 The said witness Mr. Darbar also accepted in the cross examination that the respondent workman had not misbehave with any woman employee of the company. 12. When the prime witness of the petitioner company himself accepted that any altercation between him and the respondent workman did not take place and that the respondent workman had not misbehaved with any woman employee and that at the time mentioned in chargesheet dated 6.3.2000 the respondent was not on duty and his duty hours got over at 12.00 p.m. (whereas the incident occurred at 3.30 p.m.) the conclusion by the learned labour Court that the charge levelled against the respondent cannot be held as proved, cannot be faulted. 12.1 On one hand the chargesheet dated 6.3.2000 is vague, and does not specifically and expressly even mention that the respondent had used filthy or foul language and such is not even the evidence by any witness much less by any woman employee and the only allegation in the chargesheet is that he had misbehaved with women employees but name of any woman employee with whom the respondent workman had allegedly misbehaved is not even mentioned whereas on the other hand the Supervisor himself has stated in his deposition that the respondent had not misbehaved with any woman employee and any woman employee has not stepped in as witness and not deposed that the respondent had misbehaved with her/woman employee. 13. Further, though in the show-cause-notice/chargesheet dated 6.3.2000 the petitioner alleged the respondent was under influence of liquor there is no evidence to prove the said allegation. 13.1 It is pertinent that the petitioner had not got the respondent medically examined and any test at to whether he had consumed liquor and whether he was under influence of liquor was not placed on record of the inquiry. 13.2 Thus the allegation that the respondent had consumed liquor and was under influence of liquor is not proved by any evidence. 13.3 The witness Ms. D.R. Shah clearly mentioned that she had presumed that the respondent was consumed liquor and was under influence of liquor. 13.4 It is admitted by said witness that she was standing far away and at distance from the place where the incident allegedly occurred. 14. Under the circumstances she could not have given any authentic evidence about the fact as to whether the respondent had consumed liquor or not. 15. 13.4 It is admitted by said witness that she was standing far away and at distance from the place where the incident allegedly occurred. 14. Under the circumstances she could not have given any authentic evidence about the fact as to whether the respondent had consumed liquor or not. 15. When the evidence on record is examined in entirety it emerges that the learned labour Court has not committed any error in holding that the charge levelled against the respondent cannot be held as proved. 15.1 In view of this Court the learned labour Court has also not committed any error in concluding that the petitioner failed to establish the allegation and charge against the respondent and that therefore the action of terminating respondent's service cannot be sustained. 15.2 The said conclusion by learned labour Court is based on appreciation of evidence available on record and is supported by admission by two witnesses. 15.3 The conclusions recorded by the learned labour Court are supported by cogent and sufficient reason. 15.4 The finding recorded by the learned labour Court cannot be said to be perverse or it cannot be said that the finding and the award suffer from any material irregularity. Any ground to interfere with the impugned order or to take different view from the view taken by the learned labour Court is not made out. 16. At this stage it is relevant to mention that the learned advocate for the petitioner and respondent jointly submitted and declared that the petitioner has reinstated the respondent workman immediately after petition was filed and the respondent workman is in employment with the petitioner since 2007. 16.1 For this reason also there is no reason or justification to interfere with the order directing the petitioner to reinstate the respondent. 16.2 So far as the issue related to backwages is concerned, learned labour Court has awarded 60% backwages. 16.3 The petitioner employer has failed to place any evidence on record before the learned Court that the respondent was gainfully employed during the period when the proceedings were pending before the labour Court. Since the petitioner has not placed any evidence on record to establish that during period when the proceedings were pending before labour Court the respondent was gainfully employed, there is no reason or justification to interfere with the direction to pay 60% backwages. Therefore the said direction is also not disturbed. Since the petitioner has not placed any evidence on record to establish that during period when the proceedings were pending before labour Court the respondent was gainfully employed, there is no reason or justification to interfere with the direction to pay 60% backwages. Therefore the said direction is also not disturbed. On this count, it appropriate to take into account the observations by the Hon'ble Apex Court in case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) (2013) 10 SCC 324 as well as in case of Shobha Ram Raturi v. Haryana Vidhyut Prasaran Nigam Limited ( AIR 2016 SC 157 ). In case of Deepali Gundu Surwase (supra) Hon'ble Apex Court observed, inter alia, that:-- "38. The propositions which can be culled out from the aforementioned judgments are: 38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Articles 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. 38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited ( AIR 1979 SC 75 ) (supra). 38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman." In light of the said observations, the direction with regard to the backwages is also not disturbed. In the result the petition fails and the same is accordingly dismissed. Rule is discharged.