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2017 DIGILAW 296 (GUJ)

Premani Products v. Gopalbhai P. Gandhi

2017-02-06

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Dave, learned advocate for the petitioner Company and Mr. Gadhia, learned advocate for present respondent i.e. original claimant. 2. In present petition, petitioner Company has challenged award dated 02.08.2006 passed by learned Labour Court at Ahmedabad in Reference No. 825 of 1995, whereby the learned Labour Court, Ahmedabad directed the petitioner Company to reinstate claimant on his original post with continuity of service and 25% backwages. 3. After hearing the parties, the Court passed below quoted order on 19.03.2007: "Heard the learned advocate. Rule. Notice as to interim relief returnable on 18th June, 2007. Pending this petition, there shall be ad interim stay in terms of paragraph 6 [B]." 4. Subsequently the Court passed below quoted order dated 03.07.2007: "Heard learned Advocate Mr. Joshi for Mr. D.R. Dave for the petitioner. Rule has been issued by this court by order dated 19.3.2007. While issuing rule, this court has granted ad. Interim relief in terms of para 6(B of the petition and has issued notice as to interim relief which has been served on the respondent. However, inspite of service of notice issued by this court, respondent has not appeared before this court either in person or through any advocate. Therefore, ad. Interim relief granted by this court on 19th March, 2007 is confirmed till the matter is finally decided by this court and also subject to the compliance of section 17B of the ID Act, 1947." 5. From the above quoted order, it comes out that the Court stayed the implementation and operation of the award on the condition that the employer shall comply with Section 17B of the ID Act, 1947. 6. This Court is informed that subsequently there was some modification in the order with regard to interim relief inasmuch as during the pendency of the petition, the Company, instead of paying wages under Section 17B of the Act, opted to reinstate the claimant, without prejudice to the contention in the petition and without prejudice to the objection against the impugned award. Subsequently, below quoted order came to be passed on 17.03.2008 in Civil Application No. 1657 of 2008: "1. Heard learned advocate Mr. K.V. Gadhia on behalf of applicant, learned advocate Mr. D.R. Dave appearing for opponent. 2. After filling this application, the opponent has reinstated applicant in service. Subsequently, below quoted order came to be passed on 17.03.2008 in Civil Application No. 1657 of 2008: "1. Heard learned advocate Mr. K.V. Gadhia on behalf of applicant, learned advocate Mr. D.R. Dave appearing for opponent. 2. After filling this application, the opponent has reinstated applicant in service. Therefore, prayer made in this application to grant benefit u/s. 17B, at this stage does not arise. 3. Accordingly, present Civil application is disposed of." 7. It is in light of the above mentioned facts the petitioner's challenge against the award has to be considered. 8. So far as the factual background is concerned, it has emerged from the record that the petitioner company dismissed present respondent from service pursuant to domestic inquiry, which was conducted with reference to certain serious misconduct allegedly committed by the present respondent. 8.1 Feeling aggrieved by the order dated 22.12.1994 whereby the Company terminated, the claimant raised industrial dispute which was referred for adjudication to Labour Court at Ahmedabad. The dispute was registered as Reference No. 825/95. 8.2 In his statement of claim, the claimant alleged and claimed that he was working as Accountant with the Company and that he drew salary of Rs. 1755/- and that without any fault on his part, the Company served show cause notice dated 01.10.1994 and placed him under suspension. 8.3 He also alleged that subsequently the Company issued charge sheet dated 08.10.1994 and conducted so called domestic inquiry against him and that the allegations against him were not proved. The Company dismissed him from service vide order dated 22.11.1994. The claimant alleged that the inquiry was conducted in violation of principles of natural justice and his service was terminated arbitrarily and without any justification. With such allegation, the claimant demanded that he should be reinstated in service with all benefits. 8.4 The Company denied the allegations and opposed the Reference. In its written statement, the Company contended that the claimant had committed serious misconduct including disobedience of the order of the Managing Director and indecent behaviour with Managing Director and abusing the Managing Director in filthy language and causing assault. The Company also contended that the claimant had also instigated other workmen to resort to sit-down strike and, therefore, after issuing-serving charge sheet domestic inquiry was conducted. The Company also contended that the claimant had also instigated other workmen to resort to sit-down strike and, therefore, after issuing-serving charge sheet domestic inquiry was conducted. The Company also contended that domestic inquiry was conducted in accordance with principles of natural justice and sufficient opportunity of hearing was granted to the claimant. The Company also claimed that after conclusion of the inquiry, Inquiry Officer submitted his report holding, inter alia, that charge and allegations against the claimant are proved and that, therefore, the Company dismissed the claimant from service after taking into account the gravity of misconduct and the fact that the allegation against claimant are proved during inquiry. The Company claimed that there is no illegality or arbitrariness in the decision of the Company and that, therefore, Reference may be dismissed. 8.5 Upon conclusion of the pleadings by the parties, learned Labour Court received and recorded evidence. When the contesting parties closed their evidences, learned Labour Court heard submissions by learned advocate for claimant and the Company. After considering the material available on record and rival submissions, learned Labour Court passed impugned award with above mentioned direction. 9. Mr. Dave, learned advocate for the petitioner Company contended that learned Labour Court held that the allegation against the claimant are proved and that the claimant had committed misconduct. He submitted that learned Labour Court accepted that the claimant had committed misconduct, learned Labour Court exercised power under Section 11A of the Act and with arbitrary exercise of power, learned Labour Court passed impugned award. He would submit that having regard to the nature of misconduct, there was no justification to exercise discretion under Section 11A and direct the employer to reinstate the claimant with 25% backwages. 10. Mr. Gadhia, learned advocate for the claimant submitted that learned Labour Court considered the past record of the claimant and noticed that the service record of the claimant was clean and blot-less and he had never committed any misconduct. Mr. Gadhia submitted that learned Labour Court also found that the penalty imposed by the employer was harsh and, therefore, the learned Labour Court interfered with the quantum of penalty. He submitted that it cannot be said that the learned Labour Court acted arbitrarily in interfering with penalty, which the Court found, to be harsh. Mr. Gadhia submitted that learned Labour Court also found that the penalty imposed by the employer was harsh and, therefore, the learned Labour Court interfered with the quantum of penalty. He submitted that it cannot be said that the learned Labour Court acted arbitrarily in interfering with penalty, which the Court found, to be harsh. He submitted that the award passed by the learned Labour Court is just and proper and it may not be interfered with. 11. I have considered the rival submissions and material available on record. I have also considered the reasons and findings recorded by learned Labour Court impugned award and the final conclusion and direction. 12. It is not in dispute that the claimant worked with the Petitioner Company as Accountant. It is also not in dispute that before the service of the claimant came to be terminated, he had worked with the Company for about 4 years. It is also not in dispute that serious misconduct was reported against the claimant and, therefore, the Company had placed the claimant under suspension and after issuing charge sheet, the Company conducted domestic inquiry and thereafter dismissed the claimant from service. 12.1 It is also not in dispute that during the proceedings before learned Labour Court, the claimant had challenged the legality and propriety of inquiry, therefore, issue related to legality and propriety of the inquiry was decided as preliminary issue and by order below Exh-96, the learned Labour Court held and declared that the inquiry was not conducted in accordance with principles of natural justice and it was defective. 12.2 Having declared that the domestic inquiry was defective, learned Labour Court permitted the employer to lead fresh evidence to establish the allegation against the claimant. 12.3 Thereafter, the Company led the evidence. The company examined its witnesses so as to prove the allegations against the claimant. From the discussion in the award it has emerged, more particularly from the discussion in Para-9 of the award that after examining and evaluating fresh evidence placed on record by the employer with regard to allegation and charges against the claimant, learned Labour Court reached to the conclusion that the alleged incident took place in October, 1994. From the discussion in the award it has emerged, more particularly from the discussion in Para-9 of the award that after examining and evaluating fresh evidence placed on record by the employer with regard to allegation and charges against the claimant, learned Labour Court reached to the conclusion that the alleged incident took place in October, 1994. Learned Labour Court also held that it was proved that the claimant refused to carry out the instructions and direction of Managing Director and he had not worked according to instruction issued to him. Learned Labour Court also held that the conduct of the claimant amounts to indiscipline and that holding responsible post of Accountant, could not behave in such indisciplined manner. 12.4 At the same time, learned Labour Court also held that the allegation that the claimant had committed assault and/or he had instigated other workmen is not proved though altercation with the Managing Director was proved. 12.5 Having reached to conclusion, learned Labour Court took into account past service record of the claimant and found his past service is clean and blot-less. 12.6 In this background, learned Labour Court reached to the finding that the penalty determined by the claimant was not commensurate with the gravity of misconduct and dismissal from service amounts to harsh penalty. Learned Labour Court, therefore, exercised discretionary power under Section 11A of the Act and passed impugned direction. 12.7 It is to this extent that the learned advocate for petitioner is justified in contending that the learned Labour Court having found that the allegation against the claimant had proved, learned Labour Court should not have interfered with the quantum of penalty determined by the Company. 13. On this count, it is relevant and appropriate to note that the domestic inquiry which was conducted by the employer was found to be defective. Of course, it is true that it is subsequently the employer led evidence before learned Labour Court and proved some of the allegations against the claimant. However, the fact remains that out of various allegations leveled against the claimant only some allegations were proved and other allegations were not proved. Learned Labour Court also found that the allegation about instigating other workmen and/or allegation about assault was not proved, though the charge about altercation and disobedience was proved. In this background, learned Labour Court observed that the penalty imposed by the Company was harsh. 14. Learned Labour Court also found that the allegation about instigating other workmen and/or allegation about assault was not proved, though the charge about altercation and disobedience was proved. In this background, learned Labour Court observed that the penalty imposed by the Company was harsh. 14. It is true that if the misconduct is proved, then the jurisdiction of learned Labour Court to interfere with the quantum of penalty would be limited. However, in present case, it is necessary to keep in focus that the Company had determined the quantum of penalty by proceeding on the premise that the allegation and charge of assaulting the Managing Director and instigating the workers to resort to strike are proved. However, the learned Labour Court found that the inquiry is vitiated and the findings with regard to the allegations about assault and/or instigation cannot be sustained. Thus, the quantum of penalty should be decided having regard to those allegations which are held by the Court as proved. It would be necessary and justified for learned Labour Court to determine the quantum of penalty in light of the findings recorded by it i.e. that the allegation about assault on officer and instigation to other workmen are not proved. In the facts of the case and in light of the findings recorded by the learned Labour Court, it appears that at this stage there is no justification to interfere with the decision of the learned Labour Court setting aside the order of dismissal. 15. In this context, it is relevant to recall that by its own decision the Company considered it appropriate to reinstate the claimant and during hearing of Civil Application No. 1657 of 2008, the Company reinstated the claimant and the Company also placed on record order/communication dated 03.08.2007 whereby the Company had informed the claimant to report for duty and at the time of hearing of the application, the Company on 17.03.2008 informed the Court that it has already reinstated the claimant. 16. When the said fact is taken into account, it emerges that at this stage i.e. after almost 8 years, it would not be just or proper to turn the clock back and reverse the decision of the learned Labour Court of setting aside the decision of the Company dismissing the workman. There is little justification to disturb the settled position which in operation since last about 8 years. There is little justification to disturb the settled position which in operation since last about 8 years. Besides this, the learned Labour Court passed the order with regard to penalty after holding that allegation with reference to assault and for instigation are not proved. Therefore also there is no justification to interfere with the learned Court's said direction. 17. This leaves behind the petitioner's objection against the direction to pay 25% backwages. 18. Having regard to the fact that the learned Labour Court also found that the part of the allegations against the claimant are proved and that past service of the claimant was not very long i.e. past service of the claimant was only for 4 years and also having regard to the fact that claimant had accepted before the learned Labour Court that he had been earning income of Rs. 3000/-, the direction awarding 25% backwages is not justified and said direction deserves to be set aside. Consequently, following order is passed: "(a) The direction to reinstate the claimant is not disturbed. However, direction to pay 25% backwages is set aside. Accordingly, the impugned award is partly set aside and modified and petition is partly allowed. Rule is made absolute to the aforesaid extent." Petition Partly Allowed.