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2023 DIGILAW 402 (GUJ)

Tata Chemicals Ltd. v. Soma Bhima

2023-03-03

BIREN VAISHNAV

body2023
JUDGMENT : 1. By way of this Petition under Article 226 and 227 of the Constitution of India the Petitioner has challenged the Award of the Labour Court Jamnagar dated 6.1.2006 passed in Reference (LCJ) No.470 of 1991 granting reinstatement with 50% back-wages to the Respondent Workman. FACTS: 2. The Petitioner is a Company incorporated under the Companies Act, 1956 engaged in the manufacture of soda ash, salt and other chemicals. The Respondent workman was working in the Foundary Department of the Factory of the petitioner. 3. On 18.4.1991 at around 7.15 pm the workman alongwith 2 to 4 other workmen assaulted one Punja Naran with a knife causing him grievous injury. After recording preliminary statements of various persons a charge sheet was issued to the respondent workman on 23.4.1991. 4. Pursuant to the Charge Sheet a departmental inquiry was conducted. In the Departmental Inquiry one D.S.Bath, Security Officer, Shri Babulal Chhotalal, Warden and Shri Nagajan Sajan were examined as witnesses and after conclusion of the Inquiry a report was submitted on 26.4.1991 in which charges levelled against the respondent were held to be proved. The Respondent was dismissed from service by an order dated 29.4.1991. 5. On his dismissal from service the workman challenged the same by raising an industrial dispute which was numbered as stated herein above. 6. The Labour Court by the Award under challenged directed the Petitioner Company to reinstate the Respondent workman with 50% back-wages. The Respondent was acquitted in the Criminal Case filed against him and the competent court recorded the acquittal in the year 2000 i.e. nine years after the order of dismissal was passed. 7.Mr.K.M.Patel learned Senior Advocate appearing with Mr.Varun Patel learned Advocate for the Petitioner made the following submissions. 8.Mr.Patel, taking the Court through the Inquiry Report and the evidence of the witnesses, namely Shri Bath, the Security Office, Shri Bath, Nagajan Sajan and Shri Shukla would submit that all the three witnesses had clearly deposed on the incident in question in detail recording the fact that the Respondent had assaulted Punja Naran who was driving a Luna with a pillion Rider Soma Kana. 9. 9. Taking the Court to the findings of the Labour Court he would submit that the finding recorded by the Labour Court that there were no eye witnesses and that the enquiry was bad as the victim Punja Naran and Soma Kana were not recorded was a finding that was perverse. 10. Mr.Patel learned Senior Advocate would submit that the Labour Court had by way of a detailed order recorded on 30.5.2005 had held that the Inquiry was legal and proper. That order had become final and therefore once having held that the inquiry was proper it was not proper for the Labour Court to go into the questions of propriety, justness and legality of the findings of the Inquiry Officer. 11. Mr.K.M.Patel would further submit that the Labour Court overlooked the fact that it could not have gone into the question of sufficiency and adequacy of evidence when the Inquiry Officer based on the evidence on record had held that the charge was proved. There was clear evidence in terms of the testimonies of the three witnesses Shri Bath, Naga Sajan and Shri Shukla and therefore the Labour Court could not have held that as the victim Punja Naran and Soma Khima were not examined the proceedings were vitiated, on the ground that important witnesses were not examined. 12. Mr.Patel would submit that the Labour Court exceeded its jurisdiction in re-appreciating evidence on record once the inquiry was held to be just and proper. It was not open for the Labour Court to re-appreciate the findings as if it was sitting in appeal over the findings of the Inquiry Officer. 13. Shri Patel would submit that the Labour Court committed an error in considering the record of the Criminal Case and the evidences of the statements recorded on such case when the purpose and the object of the criminal case and the departmental proceedings are different and so also the standard of proof required in both the proceedings are different. He would submit that in the criminal case the charge is required to be proved beyond reasonable doubt whereas in the departmental proceedings strict rules of evidence do not apply. Any evidence including hearsay evidence having probative value is sufficient to uphold the order of penalty of dismissal. 14. He would submit that in the criminal case the charge is required to be proved beyond reasonable doubt whereas in the departmental proceedings strict rules of evidence do not apply. Any evidence including hearsay evidence having probative value is sufficient to uphold the order of penalty of dismissal. 14. The Labour Court has committed an error that the criminal court had given an honourable acquittal whereas it was an acquittal by reason of benefit of doubt. It was not open for the labour Court to consider the evidence recorded in the criminal trial and the judgement and order passed by the Judicial Magistrate and rely upon the same to exonerate the respondent workman. 15. Mr Patel would submit that the entire case as set out in the Statement of Claim filed by the Respondent proceeded on the basis of illegal retrenchment. There was inconsistency in the Statement of Claim and the evidence and therefore the Labour Court ought to have rejected the Reference. 16. Mr.Patel would submit that the charge was that of assaulting a co-worker at the Factory Gate and the charge being serious no other penalty except that of dismissal could have been passed and the Labour Court exceeded its jurisdiction in touching the aspect of legality and propriety of inquiry. 17. Looking to the seriousness of the charge the Labour Court could not have awarded reinstatement with 50% back-wages. 18. In support of his submissions Mr.Patel would cite the following decisions. I. U.P.State Road Transport Corporation versus Vinod Kumar reported in (2008) 1 SCC 115 to support his submission that once the Inquiry is held to be legal and proper the Labour Court cannot interfere. II. Management of W.S.Insulator of India Ltd. Madras v. Mohamed Moosa and Another reported in 1979 Lab. I. C. 102 to support his submission that merely on the finding recorded by the Criminal Court it is not open for the Labour Court to set aside the order of dismissal. III. Management Of Bharat Heavy Electricals Limited versus M.Mani reported in (2018) 1 SCC 285 in support of his submission that once the Labour Court having held that the departmental proceedings were legal and proper it could not have held that the same was vitiated due to criminal court's order which had acquitted the respondent. IV. III. Management Of Bharat Heavy Electricals Limited versus M.Mani reported in (2018) 1 SCC 285 in support of his submission that once the Labour Court having held that the departmental proceedings were legal and proper it could not have held that the same was vitiated due to criminal court's order which had acquitted the respondent. IV. State of Haryana and Another v. Rattan Singh reported in AIR 1977 SC 1512 for supporting his submission that merely because the victims were not examined the departmental proceeding could not have been held to be vitiated. 19.Mr.Hasit Joshi learned Advocate for the Respondent workman made the following submissions supporting the Award of the Labour Court. 20.That the incident had occurred outside the factory premises and therefore it could be held to be a misconduct during the course of discharge of duties and therefore departmental proceedings could be held against the respondent. 21.He would submit that the Inquiry was held in hot haste. The stage from issuing the Charge Sheet to the final report was just completed in 5 days when the respondent had specifically pointed out that he was unwell and hospitalized and therefore the entire proceedings were vitiated, biased and in violation of principles of natural justice. 22.Mr Joshi reading the deposition of the victim Punja Naran recorded at Exh.16 in the criminal case would submit that reading his statement would indicate that on material points the complainant had remained silent before the criminal court which led to the acquittal of the respondent and therefore the Labour Court committed no error in awarding reinstatement with back wages. He would submit that now the workman had attained the age of superannuation and therefore there was no reason to interfere with the award. 23.Mr.Joshi would further submit that the criminal court on examination of evidence including that of the Medical Officer Dr.Mehta had considered the contradictions and therefore the acquittal recorded by the Trial Court rightly weighed with the Labour Court in awarding reinstatement with 50% back-wages. 24.Mr.Joshi would submit that the departmental proceedings and the criminal case was held on the basis of the same set of evidences and therefore the respondent was harassed and once having earned an acquittal on the same set of facts and evidences the dismissal was rightly set aside by the Labour Court. 24.Mr.Joshi would submit that the departmental proceedings and the criminal case was held on the basis of the same set of evidences and therefore the respondent was harassed and once having earned an acquittal on the same set of facts and evidences the dismissal was rightly set aside by the Labour Court. In support of this submission Mr.Joshi relied on the decision of the Supreme Court in the case of G.M.Tank Versus State of Gujarat And Another reported in (2006) 2 GLH 533 . 25.Mr.Joshi also relied on the decision in the case of Union Of India and Others versus Alok Kumar reported in (2010) 5 SCC 349 . He relied on Paras 83 and 84 of the decision that there was prejudice to the Respondent as the departmental proceedings were held in hot haste and therefore the award of the Labour Court could not be faulted. CONCLUSION 26.Having considered the submissions made by the learned advocates for the respective parties, recapitulation of facts indicate thus: 27.The Respondent was working as in the Foundry Department of the Petitioner Company. 28.Charge Sheet dated 23.4.1991 indicates that the imputation against the workman was that on 18.4.1991 at around 7:15 PM in the evening at the Factory Gates the workman together with one other intercepted the Luna of Punja Naran who was driving it and at the pillion was one Soma Kana and after picking up a fight, the Respondent workman assaulted Punja Naran with a knife causing injuries on his body. 29.An Inquiry Officer named Shri Kavatra was appointed to conduct an Inquiry on 24.4.1991. The workman was called during the Inquiry but he feigned illness and did not participate in the Inquiry. It was his case that he had chest pain and needed treatment. That when a inquiry was made at the Company’s Mithapur hospital he wasn't found there. 30.Statements of three witnesses who were examined were recorded i.e one Mr.D.S.Bath, Babulal Shukla and the Watchman Nagajan Sajan. Both, Shri Shukla and Nagajan Sajan were eye witnesses to the incident. From the statements of Nagajan Sajan it emerges that he told Soma Bhima not to stand near the Gate. In sometime Punja Naran and Soma Kana arrived on a Luna and the Respondent started stabbing Punja Naran with a knife. Witnessing this incident the watchman immediately made a call to the Warden Shri Shukla who arrived on the scene. From the statements of Nagajan Sajan it emerges that he told Soma Bhima not to stand near the Gate. In sometime Punja Naran and Soma Kana arrived on a Luna and the Respondent started stabbing Punja Naran with a knife. Witnessing this incident the watchman immediately made a call to the Warden Shri Shukla who arrived on the scene. They separated the fighting workers and saw Punja Naran was bleeding. He therefore arranged for an auto-rickshaw for Punja Naran to be carried to the Hospital. This incident was narrated by these two eye witnesses to Shri Bath, the Chief Security Officer. 31.Perusal of the Award of the Labour Court indicates that it discusses this evidence of these witnesses and then discards the statement of Naga Sajan though holding that he was an eye witness on the ground that the victim Punja Naran and the pillion rider Soma Kana have not been examined and therefore the Inquiry Officer could not hold the charge to be proved. In the preceding paras of the Award the Labour Court opines that though the legality of the Inquiry Proceedings are not disputed however it (Labour Court) can look into the evidence and assess it as to whether the evidence is credible to hold the charge as proved. 32.It is an admitted fact and the order dated 30.05.2005 below Exhibit 74 of the Labour Court is on record whereby the Labour Court after an elaborate discussion had held that there was no illegality or procedural irregularity in the holding of the departmental proceedings. Even the workman had admitted that there was no procedural or other illegality and that the inquiry was held in consonance with the principles of natural justice. That order was even accepted by the respondent workman. 33.Therefore when the Inquiry was held to be just and proper based on the evidence recorded by it the Labour Court could not have gone into the question touching the aspect of legality and propriety of the Inquiry. It was not open for the Labour Court to sit in appeal and re-appreciate the evidence on record and arrive at its own findings once the inquiry was held to be valid and legal. 34.In the case of Vinod Kumar (supra) the Supreme Court in Para 10 of the decision held as under: “10. It was not open for the Labour Court to sit in appeal and re-appreciate the evidence on record and arrive at its own findings once the inquiry was held to be valid and legal. 34.In the case of Vinod Kumar (supra) the Supreme Court in Para 10 of the decision held as under: “10. As stated in the preceding paragraphs, the respondent had confined his case only to the conclusions reached by the Enquiry Officer as well as the quantum of punishment. Therefore, since the respondent had not challenged the correctness, legality or validity of the enquiry conducted, it was not open to the Labour Court to go into the findings recorded by the Enquiry Officer regarding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the Courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. Without burdening the judgment with all the judgments of this Court on this point, we may only refer to a recent judgment in Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh, 2006 (6) SCC 187 , wherein this Court, after taking into account the earlier decisions, held in para 18 as under:- "In the instant case, the misappropriation of the funds by the delinquent employee was only Rs.360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. When an employee is found guilty of pilferage or of mis-appropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka State Road Transport Corporation v. B.S. Hullikatti (2001) 2 SCC 574 was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a mis- conduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum. [Underlining is ours]” 35.What is evident on reading the proposition of law set out by the Supreme Court is that once the correctness, legality or validity of the inquiry conducted has not been challenged it was not open for the Labour Court to go into the findings recorded by the Inquiry Officer regarding the misconduct by the respondent. 36.The award and the findings of the Labour Court getting into re-appreciating the evidence therefore is in excess of the jurisdiction that is vested in the Labour Court. 37.Coming to the second limb of the same question. When the Labour Court had no jurisdiction to reappreciate the evidence to arrive at a different finding then the one arrived at by the Inquiry Officer, it could not discard the evidence of the eye witness i.e. Nagajan Sajan on the ground that the victims, Punja Naran and Soma Kana were not examined. 38. In the case of Rattan Singh (supra) the Supreme Court has held that it is well settled that in a domestic inquiry strict rules of evidence are not applicable. 38. In the case of Rattan Singh (supra) the Supreme Court has held that it is well settled that in a domestic inquiry strict rules of evidence are not applicable. All materials which are logically probative for a prudent man are permissible. There is no allergy to hearsay evidence provided it has a reasonable nexus and credibility. 39. Paragraphs 3 and 4 of the decision in the case of Rattan Singh (supra) reads as under: “3. The principal ground on which the courts below have declared the termination bad is that none of the 11 passengers have been examined at the domestic enquiry. Secondly, it has been mentioned that there is a departmental instruction that checking inspectors should record the statements of passengers, which was not done in this case. The explanation of the State, as done out by the record, is that the inspector of the flying squad who had said that they had paid the fares but they declined to give such written statement. The third round which weighted with the courts was, perhaps, that the co-conductor in the bus had supported with this evidence, the guiltlessness of the respondent. 4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Ail materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below mis-directed themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. However, the courts below mis-directed themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passengers from American jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a ending is certainty available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has elevance to the charge leveled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.” 40.In the facts of the present case the eye witnesses Nagajan Sajan and Shukla had seen the incident. They had shared this with the Senior Security Officer Shri Bath. That piece of narrative of Shri Bath was credible even if hearsay which supplemented the version of the eyewitnesses. The Labour Court had no business to get into the chemistry of the inquiry and discard the evidence on the ground that the victims were not examined. This certainly was overstepping of the limits and therefore was a perverse finding of the Labour Court. 41.While holding that the charge against the respondent has not been proved, the Labour Court also discussed the evidence of the criminal Court, which could not have. In exonerating the Workman of the charge it went into the arena of examining the veracity of the quality of evidence of a criminal court which had given the workman the benefit of doubt when it could not have done so especially when the standard of proof in both jurisdictions were different. In exonerating the Workman of the charge it went into the arena of examining the veracity of the quality of evidence of a criminal court which had given the workman the benefit of doubt when it could not have done so especially when the standard of proof in both jurisdictions were different. 42.As held in the case of Mohamed Moosa (supra) by the Madras High Court merely because on the basis of finding rendered by the criminal court the Labour Court has set aside the dismissal which are based on the findings rendered by the departmental inquiry the Labour Court cannot do so. 43.Paras 11 and 12 of the decision in the case of Mohamed Moosa (supra) read as under: “11. I am also of the view that the Tribunal is not right in entirely relying upon the criminal court’s judgment and coming to the conclusion that the charge levelled against the petitioner has not been made out. The Tribunal having held that the domestic enquiry has been fair and proper, it has no jurisdiction to sit as if it were an appellate court. Only where it finds that the domestic enquiry has not been fair and proper and the concerned workman did not have an effective opportunity to defend himself, the Tribunal can interfere with the finding rendered at the domestic enquiry and consider the evidence on record with a view to find out whether the charge levelled against the petitioner has been made out. In this case, merely on the basis of the finding rendered by the criminal court, he has set aside the order of dismissal which is based on the finding rendered at the domestic enquiry. That is not possible for the second respondent to do. 12. As regards the third contention, it is seen that the proviso to S. 11-A of the Industrial Disputes Act, 1947, clearly states that the Labour Court cannot travel beyond the materials on record. The complainant of the petitioner in this case is that the Labour Court relied on the evidence in the criminal court which is not a material which was available at the domestic enquiry. Admittedly, the criminal court’s judgement was rendered after the findings were given at the domestic enquiry and after the order of dismissal. The complainant of the petitioner in this case is that the Labour Court relied on the evidence in the criminal court which is not a material which was available at the domestic enquiry. Admittedly, the criminal court’s judgement was rendered after the findings were given at the domestic enquiry and after the order of dismissal. Therefore, it is a new piece of evidence which has been taken into account by the Labour Court which is not permissible under the proviso to S. 11-A of the Act. For all these reasons, this writ petition is allowed and the order of the second respondent is set aside. There will be no order as to costs. Petition allowed.” 44. Even the Supreme Court in the case of M.Mani (supra) in Para 17 to 19 read as under : “17. To begin with, when we examine the legality and the correctness of the Awards of the Labour Court, we are of the considered opinion that the Labour Court, having held and indeed rightly that the departmental enquiry conducted by the appellant was legal and proper committed an error in holding that the departmental enquiry got vitiated due to criminal court's order which had acquitted the respondents from the charge of theft. In our opinion, there was no occasion for the Labour Court to examine this issue once the departmental enquiry was held legal and proper. The Labour Court, in our opinion, committed yet another error in holding that since the appellant failed to lead any evidence to prove the charge in Labour Court, therefore, the dismissal orders of respondents are liable to be set aside. This finding, in our opinion, was again not legally sustainable. 18. In our opinion, once the Labour Court upheld the departmental enquiry as being legal and proper then the only question that survived for consideration before the Labour Court was whether the punishment of “dismissal” imposed by the appellant to the respondents was legal and proper or it requires any interference in its quantum. 19. 18. In our opinion, once the Labour Court upheld the departmental enquiry as being legal and proper then the only question that survived for consideration before the Labour Court was whether the punishment of “dismissal” imposed by the appellant to the respondents was legal and proper or it requires any interference in its quantum. 19. In other words, the Labour Court should have then confined its enquiry to examine only one limited question as to whether the punishment given to the respondents was, in any way, disproportionate to the gravity of the charge leveled against them and this, the Labour Court should have examined by taking recourse to the provisions of Section 11-A of the Industrial Dispute Act, 1947 (in short “the Act”) and the law laid down by this Court in the case of The Workmen of M/ s Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors., (1973) 1 SCC 813 . It was, however, not done thereby rendering the order of Labour Court legally unsustainable.” 45. As argued by Shri Patel learned Senior Advocate even if the Criminal Court had acquitted the respondent it was not open for the Labour Court to set aside the Order of dismissal. 46. Reliance placed on the decision in the case of G.M.Tank (supra) by Shri Joshi in the facts of the present case is misplaced. The respondent was dismissed from service in the year 1991 after a departmental inquiry. The acquittal of the criminal court, giving the Respondent workman the benefit of doubt was recorded 9 years after the order of dismissal. This was therefore not a case where there was a case of two proceedings going simultaneously so as to warrant harassment as recorded in the decision of G.M. Tank (supra). 47. Overall therefore once the legality and validity and propriety of the Inquiry was accepted by the Labour Court and was not challenged by the workman too, it was not open for the Labour Court to sit in appeal and re-appreciate and review the evidence as if sitting in appeal. Judgements cited at the Bar by the Counsel for the Petitioner support the case that the Award of the Labour Court for all the aforesaid reasons deserves to be quashed and set aside. 48. Judgements cited at the Bar by the Counsel for the Petitioner support the case that the Award of the Labour Court for all the aforesaid reasons deserves to be quashed and set aside. 48. Moreover even the perusal of the Statement Of Claim filed by the respondent workman was only pleading a case of retrenchment and not dismissal pursuant to a departmental proceedings and therefore too the directions in the award were otherwise not warranted. 49. Accordingly the Award of the Labour Court, Jamnagar in Reference (LCJ) 470/1991 granting reinstatement with 50% back-wages is held to be bad and is therefore quashed and set aside. The Petition is accordingly allowed with no order as to costs.