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Gujarat High Court · body

2020 DIGILAW 367 (GUJ)

Reliance Industries Ltd. v. Bhavanbhai S. Bharvad

2020-02-27

SONIA GOKANI

body2020
JUDGMENT : 1. By way of this petition, the petitioner seeks following relief’s: “19... (a) Quashing and setting aside the impugned order dated 10.05.2010 passed by Industrial Court Gujarat in Review Application (IC) No.3 of 2009 in Revision Application (IC) No.5 of 2008. (b) Quashing and setting aside the impugned judgment and order dated 21.08.2009 passed by Industrial Court Gujarat in Revision Application (IC) No.5 of 2008. (c) Quashing and setting aside the impugned order dated 10.01.2008 passed by the Labour Court No.3 Ahmedabad in T Application No.49 of 1995. (d) Granting such other and further relief and passing such other and further orders as may be necessary in the facts and circumstances of the case. (e) Awarding cost of this petition. (f) During the pendency and final disposal of this petition, Your Lordship may be pleased to pas an order staying the operation and implementation of the impugned judgment and order dated 10.05.2010 passed by the Industrial Court Gujarat in Review Application (IC) NO.3 of 2009 in Revision Application (IC) No.5 of 2008 and the judgment and order dated 21.08.2009 passed by the Industrial Court Gujarat in Revision Application (IC) No.5 of 2008 and order dated 10.01.2008 passed by the Labour Court No.3 Ahmedabad in T Application No.49 of 1995.” 2. Brief facts leading to the present petition are as follow: 2.1 The petitioner challenges the judgment and order dated 10.05.2010 passed by the Industrial Tribunal in Review Application (IC) No.3 of 2009 in Revision Application (IC) No.5 of 2008 and judgment and order dated 21.08.2009 passed in Revision Application (IC) No.5 of 2008, so also the order dated 10.1.2008 of Labour Court in T Application No.49 of 1995. 2.2 The respondent was discharged by the Petitioner employer vide an order dated 28.01.1995 after holding a fullfledged departmental inquiry. He challenged the termination by approaching under Section 42(4) of the Act on 12.02.1995 and thereafter filed an application under Section 78 and 79 of the Bombay Industrial Relations Act, 1946, which was registered as T application No.49 of 1995. 3. The Labour Court passed an order on 10.01.2008 on the issue whether the departmental inquiry is legal and valid and it held that the same was illegal as no report was supplied to the respondent and he was also not heard on the issue of penalty. 3. The Labour Court passed an order on 10.01.2008 on the issue whether the departmental inquiry is legal and valid and it held that the same was illegal as no report was supplied to the respondent and he was also not heard on the issue of penalty. 3.1 The Labour Court directed the petitioner company to provide the report of the inquiry to the respondent and hear him on the issue of penalty within a period of one month. 4. This was challenged by the petitioner by filing Revision Application (IC) No.5 of 2008 before the Industrial Court at Ahmedabad. The Industrial Court rejected this Revision Application on 21.08.2009 and held that the entire departmental proceeding was illegal. Aggrieved by the said order dated 21.08.2009, the petitioner preferred Review Application before the very court being Review Application (IC) NO.3 of 2009 at Ahmedabad. This has been rejected vide order dated 10.05.2010. This has aggrieved the petitioner, who challenged the same with the aforementioned relief’s. 5. Additional affidavit has been filed by the petitioner stating that he is the Chief Manager (Legal). The respondent was discharged from service after conducting departmental proceedings in relation to the serious charges of instigating other workers and creating riotous atmosphere so also disrupting the work and causing loss of production and also abusing his senior officers. This had been challenged before the Labour Court in T Application and where non availing of an opportunity dated was challenged. The Industrial Court held the entire departmental proceedings to be illegal and void being contrary to the principles of natural justice. The Industrial Court has held that the entire inquiry should be conducted de novo from the stage of inquiry report as per the order of the Labour Court and further clarified that the order dated 10.01.2008 passed by the Labour Court in T. Application No.49 of 1995 is not stayed. This had happened while admitting the petition. 6. The petitioner company inquired from the stage of furnishing inquiry report and supplied the copy of findings of inquiry to the respondent vide letter dated 31.07.2010. The second show cause notice was issued on 21.10.2010 to the respondent. The respondent was provided the copy of findings of inquiry on 31.07.2010,but, he never reverted back on the same. He was called upon as to why the order dated 21.08.1995 discharging him should not be upheld. The second show cause notice was issued on 21.10.2010 to the respondent. The respondent was provided the copy of findings of inquiry on 31.07.2010,but, he never reverted back on the same. He was called upon as to why the order dated 21.08.1995 discharging him should not be upheld. The respondent then replied to the second show cause notice on 20.11.2010 wherein he acknowledged that he has received the findings of inquiry. The petitioner company replied to the letter dated 08.12.2010 and called upon the respondent to submit his response within a period of seven days, failing which it was conveyed that further action against him. He replied to the same on 16.12.2010 and the company held that there was no scope of modifying the discharge order dated 28.01.1995. It is thus urged that the petitioner-company has already provided due opportunity to the respondent and the Court in Revision as also in the Review has taken incorrect stance by disallowing both of them. According to the Petitioner for a limited scope, the revision was preferred but, instead of allowing the said revision on the issue of availing opportunity of issuance of second show cause notice, the Industrial Tribunal has held the entire departmental proceeding as bad in law, which would surely amount to going beyond its scope. This also could have been reviewed and the same had not been done. When it moved an application for review, by a detailed order the Tribunal held that review application has a limited scope and unless there is an error of typographical nature or there are obvious and apparent reasons legal or otherwise which would necessitate interference, no application of review can be countenanced. The Court needs to accordingly decide this erroneous approach, however, it is urged that it cannot act as an Appellate Authority on the ground of absence of any clerical or arithmetical mistake and the merits surely cannot be entered into. The Review Application on the strength of Section 95 of the BIR Act has been rejected. 7. This Court has heard at length the learned advocates on both the sides, who have fervently made theIr respective submissions along the line of memo of the petition and the trial Court's record. 8. The Review Application on the strength of Section 95 of the BIR Act has been rejected. 7. This Court has heard at length the learned advocates on both the sides, who have fervently made theIr respective submissions along the line of memo of the petition and the trial Court's record. 8. It is the say of the Learned Advocate appearing for the petitioner company that pursuant to the order of the Labour Court, the second time the show cause notice had also been issued and it had been replied to. The punishment awarded earlier has been upheld by the disciplinary authority and therefore, the order of the revision also has lived its life. The Industrial Court ought not to have gone into the merit of the matter to hold against the petitioner company. It is further its say that the Court has travelled beyond its scope in also rejecting the request in revision and thereafter by not accepting the application of review. 9. Learned advocate, Mr.Hemal Acharya appearing for the respondent has urged that the Court acted within its own bound while exercising revisional powers as well as powers of review. It has in detail discussed the case laws so also the factual matrix, no interference is required to consider these orders in Writ jurisdiction since the trial Court and the Court In Revision have acted within its own bound. 10. The chronology of events on hearing both the sides and also from the orders which are impugned here when are looked at, It appears that the respondent was working from 1981 as a folder in folding department of the Petitioner and he was a permanent employee. He was given the pay of Rs.2200/when terminated from the service. 11. Pending the departmental proceedings, he was superannuated on 17.10.1994. There were serious allegations made against him in the departmental proceedings. He replied to the show cause notice on 19.11.1994. The amended charge-sheet was laid against him on 24.11.1994 to which he replied on 08.12.1994. The departmental proceedings continued against him, he challenged the same on the ground that he was not given the due opportunity. The inquiry officer did not provide necessary documents and papers and his order of termination on 28.01.1995 on that count was held illegal and improper. He also questioned the departmental proceedings. 12. In the written statement, this had been denied by the present petitioner. The inquiry officer did not provide necessary documents and papers and his order of termination on 28.01.1995 on that count was held illegal and improper. He also questioned the departmental proceedings. 12. In the written statement, this had been denied by the present petitioner. According to the employer, all opportunities as required to be given to any delinquent had been given in the case of present respondent. In permanent rules of the company applicable to all employees, there is no provision of subsistence allowance and yet, he had been granted 50% of the subsistence allowance. According to the petitioner, certain details of witnesses had not been very specifically stated in the show cause notice and also in other proceedings. Again ,in absence of any specific provision for issuance of the second show cause notice, there was no such requirement and the order of discharge could not have been questioned on the count. 13. The Labour Court noticed that on three counts essentially the challenge was made to the departmental proceedings i.e.(i) nonpayment of subsistence allowance, (ii) non furnishing of the names of the witnesses and non-acceptance of complaint against the security person and also that in absence of such complaint no steps have been taken against the concerned defaulter and (iii) second show cause notice has not been given proposing the punishment. 14. The respondent had stated on oath that he was given suspension allowance by virtue of the order dated 17.11.1994. He also participated in the departmental inquiry. The security officer, labour officer, departmental slab supervisor, etc. have been examined. His representative also cross examined them and further declared that he was not willing to examine any witness on his behalf. 15. After hearing the learned advocates on both the sides, this Court notices that in rules applicable to the employee of the company when regarded, rule 24(5) has relevance. But, of course, this rule does not speak of suspension allowance, however, at the end of the inquiry if the delinquent is not found guilty, it provides that he should be paid the total arrears of pay. 16. This Court also notices that the respondent could not point out any contraindication for not having disclosed the names of the witnesses or for any other reasons. The Respondent accepted that the 50% of the suspension allowance had already been paid. 16. This Court also notices that the respondent could not point out any contraindication for not having disclosed the names of the witnesses or for any other reasons. The Respondent accepted that the 50% of the suspension allowance had already been paid. His dispute with the security persons had not been included in the entire proceeding so as to affect his right during the departmental proceedings. He never had made a request for including the names of these witnesses nor could he points out any prejudice because there was no inclusion of complaint made against the security persons. The Court found the employer having followed the rules and regulations during the departmental proceedings. It also relied on some of the decisions to eventually hold that the report of inquiry officer since had not been furnished to the respondent and he has not been heard in absence of any show cause notice, there was a requirement for giving him the opportunity from the stage at which this had been done. The Court further directed the entire procedure to be completed within a period of three months. 17. This since has aggrieved the petitioner, it had preferred the Revision Application. The Court in Revision found entire departmental proceedings devoid of merits. It had therefore, chose to hold that departmental proceeding is illegal, improper and contrary to the principles of natural justice and sent back the record and proceedings to the Labour Court for further proceeding. 18. The Review Application also has been rejected on the ground that there was a limited scope of review. 19. This Court at the time of admission passed the following order: “1. Heard Mr.A.K. Clerk, learned advocate for the petitioner. 2. It is pertinent to note that if the inquiry is conducted de novo, no prejudice will be caused to either party. On the contrary, if the proceedings, as prayed for, are stayed, the matter will be heard after about 10 years and the respondentworkman, who is dismissed from service, will be deprived of his livelihood. This is nothing but disadvantage, which is required to be prevented. 3. Hence, RULE. The operation, execution and implementation of the order dated 21st August 2009 passed by the Industrial Court in Revision Application (IC) No.5 of 2008 is hereby stayed. 4. This is nothing but disadvantage, which is required to be prevented. 3. Hence, RULE. The operation, execution and implementation of the order dated 21st August 2009 passed by the Industrial Court in Revision Application (IC) No.5 of 2008 is hereby stayed. 4. The inquiry is ordered to be conducted de novo from the stage of inquiry report as per the order of the Labour Court. 5. It is clarified that the order dated 10th January 2008 passed by the Labour Court in T. Application No.49 of 1995 is not stayed. Direct Service is permitted.” 20. It is given to understand that thereafter second show cause notice has already been issued by the present petitioner on 21.10.2010. He replied to the same on 28.11.2010, which had been further replied to by the present petitioner on 08.12.2010. The correspondence also continued on 16.12.2010 on the part of the respondent. Eventually, the disciplinary authority chose to continue the order of discharge. 21. Thus, it appears that the second show cause notice, which according to the Labour Court was not given as contemplated under the law, has already been given. This Court on 09.07.2010 while admitting the matter had stayed operation and implementation of the order dated 21.08.2019 passed in the Revision Application No.5 of 2008 by the Industrial Court. The Court clarified that the order in T.Application No.49 of 1995 was not stayed. 22. It is quite clear that pursuant to the order of this Court, once again, the process of serving the copy of report of Inquiry Officer as has been directed by the Labour Court has been completed. The second show cause notice has been duly given and the same had been replied to by the respondent. The outcome of this fresh conduct of inquiry is that the petitioner company has continued its order of terminating the service of the Respondent by way of discharge of respondent. The respondent by way of its communication dated 16.12.2010 had also replied and participated. 23. In the opinion of this Court, this will give a fresh cause as whatever was the lacuna found by the Labour Court, and for removal of which, it had been given three months’ period to the petitioner, has already been removed. The respondent by way of its communication dated 16.12.2010 had also replied and participated. 23. In the opinion of this Court, this will give a fresh cause as whatever was the lacuna found by the Labour Court, and for removal of which, it had been given three months’ period to the petitioner, has already been removed. This Court had pursuant to the direction of the Labour Court directed procedural irregularity to be ironed out and therefore, the sole material impediment which in the opinion of the Labour Court had put a question mark against the departmental proceeding, no longer survives. 24. However, as admitted by the learned advocate, Mr.Hemal Achrya, there is no separate or independent challenge to the communication made dated 28.02.2011 by the petitioner company, whereby it has continued with its order of discharge dated 28.01.1995. 25. This Court notices that before the Labour Court in T. Application the challenge has been made initially to the order of ending of service by way of discharge dated 28.01.1995. This has not been decided by the Court in wake of the anomalies and irregularities found, curing of which was ordered and the same has already been implemented. By directing the entire proceeding to be conducted de novo on the part of the revisional court, it certainly exceeded its jurisdiction. the entire departmental proceeding illegal, improper and contrary to the principles of natural justice instead of deciding the aspect of directions issued by the Labour Court, Industrial Court exceeded its jurisdiction, therefore, that order along with the order of review shall need to be quashed upholding the order of Labour Court which in wake of the order passed by this Court at the time of admission and subsequent event otherwise the stands upheld. 26. The question of punishment in the form of the discharge which had been earlier given and challenged before the Labour Court in T. Application No.49 of 1995 is yet to be adjudicated by the Labour Court. The respondent shall be permitted to raise all objections including the aspect of requisite amendment in post 2010 period. Let the Court concerned decide the aspect of proportionality of punishment within a period of three months from the date of receipt of a copy of this judgment. None of the observations made here shall prejudice the rights of the parties on the aspect of proportionality of punishment. Let the Court concerned decide the aspect of proportionality of punishment within a period of three months from the date of receipt of a copy of this judgment. None of the observations made here shall prejudice the rights of the parties on the aspect of proportionality of punishment. Parties shall be at liberty to raise their respective contentions available under the law. Parties also are permitted to explore the possibility of amicable settlement if they so choose on a limited aspect of proportionality of punishment. 27. With the above directions and observations, present petition stands allowed to the extent stated above and is disposed of. cost to be the cost in cause.