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2020 DIGILAW 242 (GUJ)

Jashvantsinh Dhirajsinh Thakor v. Manager, Birla Cellulosic Ltd.

2020-02-04

SONIA GOKANI

body2020
ORDER : 1. As questions of identical facts and law are involved in these petitions, they are being decided by this common oral order. The facts are drawn from Special Civil Application No. 22578 of 2019 for the purpose of adjudication. 2. The petitioner worked as a technician from 04.09.1998 with the respondent and by written order dated 01.04.2009 his services came to be terminated with immediate effect. 2.1. The industrial dispute came to be raised before the Assistant Labour Commissioner, which was referred to the Labour Court Bharuch vide Reference (LCB) No. 146 of 2009. The Court partly allowed the same on 20.12.2018 where the demand of reinstatement with continuity of service along with backwages has been rejected and instead the Court awarded lump-sum compensation to the tune of Rs. 4,25,000/-. Hence, this petition is preferred with the following prayers:- “(A) YOUR LORDSHIPS be pleased to issue writ of mandamus or appropriate writ and/or certiorari and be pleased to direct the order dated 20/12/2018 passed by the Labour Court, Bharuch in Reference (LCB) No.146/2009 being illegal, improper, arbitrary and contrary to the provisions of Industrial Disputes Act, 1947 deserves to be quashed and set aside by this Hon'ble Court. (B) YOUR LORDSHIPS be further pleased to direct the Respondent Company to reinstate the Petitioner on his original post with continuity of service with full back wages along with all consequential benefits. (C) YOUR LORDSHIPS be pleased to pass such other and further order as the nature and circumstances of the case may require.” 3. The petitioner and other workmen of the respondent company were formerly the members of Bharuch Jilla Audhyogik Kamdar Sangh and they joined another union namely Gujarat Rajya Kamdar Sena w.e.f. 27.10.2005. The union thereafter requested the respondent company for negotiation on 09.03.2006. The workmen of the company who are members of the union, according to the petitioner, were pressurized to give resignation from the union, however, the respondent company did not succeed in this tactics but continued to harass the workmen. The respondent company since had not liked the union activity, the charge-sheet came to be issued on 26.12.2008. An inquiry also was initiated and findings were given by the inquiry officer on 23.03.2009. The order of termination dated 31.03.2009 was passed based upon the inquiry report. 4. The respondent company since had not liked the union activity, the charge-sheet came to be issued on 26.12.2008. An inquiry also was initiated and findings were given by the inquiry officer on 23.03.2009. The order of termination dated 31.03.2009 was passed based upon the inquiry report. 4. This has been challenged by way of industrial dispute and eventually after considering the statement of claim, written statement and the evidence adduced by the parties, the Labour Court on 18.01.2017 decided the issue in favour of the respondent company. 5. The findings, according to the petitioner, were perverse and punishment of termination is totally disproportionate, therefore, they made a request for reinstatement on original post with continuity of service and full backwages, however, the Court instead granted the lump-sum compensation. Hence, the petitioner is before this Court. 6. This Court has extensively heard learned advocate Mr. M.V. Patel, appearing for the petitioner, at the time of admission and has perused the material on record. The challenge had been made to the departmental proceedings questioning the validity and legality of the inquiry by raising the preliminary issue, however, the Court on 18.01.2017 passed the order and held that the domestic inquiry against the workmen was proper and found no fault therewith. A limited question then arise is the contempt of punishment for which both the sides had led evidence whereby, the present workman had been examined at Exh-27. As per the deposition of the workman, he was victimized and due to union activities, this proceedings had been initiated, whereas the Court's examination of the workman had taken place where he agreed that the inquiry proceedings had been undertaken before his termination was made by the management. Three statements had been made with the respondent. There had been no medical certificate along with the inquiry proceedings. He denied that he worked with the food company at Shama Pardi. 6.1. From the management, one Mr. Ashwin Bharti Goswami had been examined and according to him, the petitioner had worked at M/s. Rajhans Group of Industries where the company had given him the Identity Card and certificate of being the part of work of M/s. Patco Food Company. He worked at Kosamba for salary of Rs. 20,900/- per month. He also has been extensively cross examined. He chose not to examine the manager of Rajhans Group. 7. He worked at Kosamba for salary of Rs. 20,900/- per month. He also has been extensively cross examined. He chose not to examine the manager of Rajhans Group. 7. On the basis of this, the Court noticed that the rules of model standing orders since had been breached in the charge-sheet, the charges of unauthorized absenteeism have been duly proved. However, the Court found that punishment itself was disproportionate to the charges proved. Exercising the powers under Section 11(A) of the ID Act, the Court deemed it appropriate not to grant reinstatement which is otherwise also not automatic. The Court also held that cordial relationship between the parties did not exist as apparent from the record and the reinstatement should not be a solution in such circumstances. He since is already working, the lump-sum compensation was construed sufficient. 8. Section 11(A) of the ID Act, if is considered, it authorizes the Labour Court and National Tribunal to grant and mould appropriate relief in case of discharge and dismissal of the workman. It is in relation to the industrial dispute, if there is a discharge or dismissal and if the matter is referred to the Labour Court or tribunal or Industrial Court for adjudication, and if any of these is satisfied that the order of discharge or dismissal requires indulgence, it can give such other reliefs to the workman including award and less punishment in lieu of discharge or dismissal. The only condition as per the proviso is that it should rely on the material on record and shall not on any material in relation to this. 9. Exercise of supervisory jurisdiction by this Court under Article 227 read with Article 226 of the Constitution of India is permissible for keeping the Courts in hierarchy “within the legal bounds” and the law in this respect is well laid down in case of Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil; reported in 2010 AIR SCW 6387, where the Apex Court has held thus:- “62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. 2. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.” 10. Noticing that the trial Court has not exceeded its jurisdiction and had adjudicated the matter within its own bounds, there will be no requirement of this Court to interfere at all. It is also noted that from the material available with the Court, it has chosen to grant lump-sum compensation which is substantial in nature. The petitioner is already serving as can be culled out from the evidence and that also is one of the decisive grounds which has weighed heavily with the Court in passing such order of lump-sum compensation. 11. This Court finds no reason in such circumstances, to entertain these petitions. Hence, all the petitions stand dismissed in limine.