SCA/8717/2008 1/33 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8717 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD Sd/- ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? YES 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? YES 5 Whether it is to be circulated to the civil judge ? NO ========================================================= G S R T C THROUGH DIVISIONAL CONTROLLER - Petitioner(s) Versus AMBARAM M CHAUDHARI - Respondent(s) ========================================================= Appearance : MR HARDIK C RAWAL for Petitioner(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 30/06/2008 ORAL JUDGMENT 1. Heard learned advocate Mr. Hardik C. Rawal appearing on behalf of petitioner. 2. In the present petition, petitioner Corporation has challenged the order passed by Industrial Tribunal, Ahmedabad in Approval Application No.720 of 2004 in Reference (IT) No.37 of 2000 dated 10th January 2008. The Industrial Tribunal, Ahmedabad has not granted approval of dismissal order dated 30th October 2004 of approval application under Section SCA/8717/2008 2/33 JUDGMENT 33(2)(b) of the Industrial Disputes Act, 1947. 3. Learned advocate Mr. Rawal appearing on behalf of petitioner submitted that respondent workman was serving as driver and because of his negligent driving, a cyclist was crushed under vehicles of ST bus driven by him on 2nd November 1989. A charge-sheet was issued on 12th April 1990 and departmental inquiry held in accordance with rules. The second show cause notice was issued on 7th May 1991 which was challenged by respondent by filing Special Civil Application No.3529 of 1991 and interim protection was granted by this Court as Criminal Case No.2372 of 1989 was pending. The aforesaid interim protection was vacated by this Court on 23rd April 2004. Thereafter, order of dismissal was passed on 30th October 2004 in accordance with rules. The industrial dispute was pending before the Tribunal, therefore, for compliance of Section 33(2)(b), approval application was filed by petitioner before the Industrial Tribunal, Ahmedabad. The respondent waived the challenge of legality and validity of departmental inquiry and Tribunal did not find any infirmity in compliance of Section 33(2)(b), inspite of that facts, Tribunal has inferred with the finding given by inquiry officer which is not permissible as per recent judgment of Hon'ble Apex Court even in Reference under Section 10 of the Industrial Disputes Act, whereas, learned Tribunal Judge exercised the jurisdiction under Section 33(2)(b) of the Industrial Disputes Act, 1947 which is not available to him and therefore, Tribunal has committed gross error in rejecting the approval application. 4. Learned advocate Mr. Rawal also pointed out that after 1989, the respondent was punished for 15 times, out of which, 5 related to accident. This being a past record of the respondent. Therefore, he submitted that Tribunal should not have jurisdiction to examine the finding given by inquiry officer while considering the approval application under the provisions of the Industrial Disputes Act, 1947. 5. I have considered the submissions made by learned advocate Mr. Rawal and I have also perused the order passed by Industrial Tribunal, Ahmedabad. SCA/8717/2008 3/33 JUDGMENT The Tribunal has considered after taking into account the reply filed by respondent. The Corporation has produced all the relevant record of departmental inquiry before the Tribunal along with approval application. The Exh.10 – reply was submitted by respondent. According to respondent, it was not his negligence, because, accident occurred in rear wheel of conductor side. According to respondent, two persons were sitting on the cycle and therefore, all of sudden, cyclist came in from road and dashed with the bus on rear wheel of conductor side. The bus was not driven by respondent in rash and negligent manner and therefore, according to respondent, cyclist was coming from behind portion from right side and person who was sitting behind cyclist, fell down, therefore, accident occurred on the rear wheel of the conductor side. 6. In Criminal Case No.2372 of 1989, respondent was declared acquittal by the competent Criminal Court. Therefore, according to respondent, the Corporation has wrongly dismissed him. The documents are exhibited before the Industrial Tribunal and legality and validity of departmental inquiry was not challenged by the respondent, but, finding given by inquiry officer was challenged by the respondent and also challenged the punishment of dismissal. No evidence was led by either side before the Tribunal. Ultimately, Tribunal has framed the issue that whether Corporation has proved prima facie case against the respondent and entitled for the approval of dismissal order dated 30th October 2004 or not. The Tribunal has discussed the arguments made by both the sides and also considered the record produced by Corporation. The Tribunal has come to conclusion in Para 9/3 that notice pay was paid to workman vide Exh.28, but, whether proper procedure was followed while dismissing the workman or not and finding given by competent authority is baseless or perverse or not is to be examined by Tribunal. Therefore, Tribunal has examined that what happened after accident was occurred with ST bus. One officer who has attended the accident visited the place of accident who was Senior Depot Manager and Divisional Traffic Superintendent(D). The accident form was filled up, in which, Page 4 Traffic Inspector Mr. C.C. Patel has SCA/8717/2008 4/33 JUDGMENT made endorsement that driver is responsible for the said accident which has been taken into account by Senior Divisional Traffic Officer that looking to the report submitted by a person who has attended the accident, ST driver is responsible. This endorsement was made on 9th April 1990 by Shri Mahendrabhai Pandya who has given an opinion against the driver that he is responsible for the said accident. Thereafter, the same officer – Senior Divisional Traffic Officer Shri Mahendra Pandya issued a charge-sheet on 12th April 1990 to the workman. Therefore, Tribunal has taken into account a predetermination mind of the concerned officer who has issued charge-sheet to the respondent workman. The competent authority who has issued a charge-sheet has already come to conclusion that driver is responsible by endorsement and accepting the report on 9th April 1990 and on 12th April 1990, the same officer has served a charge-sheet to the workman and thereafter, the departmental inquiry was initiated against the workman. Therefore, Tribunal has taken into account of the facts that before initiating the departmental inquiry even before issuing the charge-sheet, the authority has already determined his mind that driver is responsible for accident while accepting the report of person who has attended the accident. Therefore, it caused prejudice to the workman who is having a predetermine misconduct establish believed by authority, thereafter, only formal charge-sheet was served to the respondent workman. Therefore, departmental inquiry and decision determined by authority is not independent, but, it based on predetermine by authority. The appellate authority Divisional Controller has also endorsed the said report on 10th April 1990 that driver is responsible. Therefore, according to Tribunal, everything has come to end up to the appellate authority who is appointing authority and 10th April 1990 holding that driver was responsible. Thereafter, only formal charge-sheet was served to respondent and formal inquiry was conducted against the workman. On that basis, Tribunal has examined the finding given by competent authority. Mr. C.C. Patel, who was reporter, was examined before the inquiry officer who was not eye-witness and who has not obtained any statement on the spot when he visited the place of accident. Therefore, according SCA/8717/2008 5/33 JUDGMENT to Tribunal, the competent authority was not independent, having the bias against the workman on the basis of predetermination and only workman was examined before the inquiry officer where certain questions were put by competent authority which were replied by workman. Ultimately, cross-examination of workman was not challenged by Corporation and why the defence of the workman is not believed by the Corporation, for that, no independent finding was given, no discussion was there and no reasoning was given. Therefore, Tribunal has come to conclusion that finding given by competent authority is baseless and perverse. 7. The competent authority has predetermine the issue that workman is guilty without holding departmental inquiry and without giving any opportunity, it caused prejudice and it amounts to a real bias against the workman by disclosure who has punished the respondent workman on the basis of predetermination mind. Therefore, it is a clear case of real bias caused prejudice to the workman as per case of Cantonment Executive Officer & Anr. v. Vijay D. Wani & Ors. reported in 2008 (3) Supreme Today 1. The relevant Para 7 is quoted as under : “7. Therefore, the ratio of all these cases is that a person cannot be a Judge in his own case. Once the disciplinary committee finds the incumbent guilty; they cannot sit in the judgment to punish the man on the basis of the opinion formed by them. The objectivity is the hallmark of a judicial system in our country. The very fact is that the disciplinary committee who found the respondent(herein) guilty participated in decision making process for finding the respondent(herein) guilty and to dismiss him from service is bias which is apparent & real. Consequently, the view taken by the Division Bench of the High Court cannot be faulted.“ 8. The Tribunal has discussed the entire finding that how the competent authority arrived at and accepted only report of the reporter who was not eye- witness and driver who was cross-examined by competent authority. There is no other evidence led to prove the misconduct against the workman who was SCA/8717/2008 6/33 JUDGMENT examined by competent authority. 9. In criminal case, workman was declared acquittal by the competent Court. Therefore, Tribunal has examined that finding given by competent authority is based upon legal evidence or not, for that, Tribunal has come to conclusion that finding is baseless or perverse, because, defence taken by workman is not at all discussed and the same is not believed by competent authority. For that, no reasoning is given by competent authority, therefore, finding is declared vitiated by the Tribunal. 10. It is necessary to note that in Corporation, charge-sheet was issued by competent authority, Senior Divisional Traffic Officer who has made endorsement on the report submitted by person who had attended the accident on 9th April 1990 and same officer issued charge-sheet on 10th April 1990 and before that, appellate authority who was competent authority has also endorsed and accepted the report that driver was responsible on 10th April 1990. In Corporation, there is no separate or different inquiry officer is appointed, but, a competent authority himself work as an inquiry officer and he himself gives the finding and he himself taking the decision to punish the workman. Therefore, the person who has already come to conclusion accepting the report submitted by Mr. C.C. Patel, Traffic Inspector, holding that driver is responsible, the said officer has conducted the inquiry and come to conclusion that driver is responsible. This kind of inquiry itself is vitiated as it has violated the basic principle of natural justice and it caused prejudice to the defence of workman. The defence disclosed by the workman in cross-examination was not properly appreciated by the competent authority and why the defence of the workman was not believed, for that, no separate independent reasoning is given by competent authority. Therefore, Tribunal has rightly come to conclusion that finding given by competent authority is vitiated as it is against the principles of natural justice and also caused prejudice to the workman in his defence. 11. Learned advocate Mr. Rawal raised contention that Industrial Tribunal, while considering the SCA/8717/2008 7/33 JUDGMENT approval application, has no jurisdiction to examine the finding given by competent authority as per recent decision of Apex Court which prohibits the Labour Court from examining the finding where inquiry held to be legal and valid in a reference under Section 10 of the Industrial Disputes Act, 1947. He relied upon the two decisions of Apex Court; (i) in case of U.P. State Road Transport Corporation v. Vinod Kumar and Another reported in JT 2007 (13) SC 404 and (ii) in case of Employers in relation to the Management to West Bokaro Colliery of M/s. TISCO Ltd., v. The Concerned Workman, Ram Pravesh Singh reported in JT 2008 (2) SC 272. He also submitted that legality and validity of departmental inquiry was not challenged by workman and in such circumstances, finding cannot be examined by Tribunal. The contention raised by learned advocate Mr.Raval is not accepted by this Court because of the view taken by Apex Court in case of Central Bank of India, Ltd., New Delhi v. Prakash Chand Jain reported in 1969-II-LLJ 377, where, Apex Court has, in terms, held that while deciding the approval application, Tribunal or Labour Court has jurisdiction to examine the legality and validity of finding even conciliation officer when deciding the approval application. He has also jurisdiction to decide the legality and validity of finding. The relevant Head Note is quoted as under : “Head Note : The appeal was preferred against the order of the industrial tribunal rejecting approval sought for by the appellant-bank under S.33(2)(b) of the Industrial disputes Act. The acts of misconduct levelled against the workman were alleged to have fallen under Para.521-A(J) of the Sastri award. The tribunal, when dealing with the application for approval, held that the enquiry held by the enquiry officer was fair, and was not vitiated by any irregularity or unfairness but refused to accord approval on the ground that the findings rendered by the enquiry officer were perverse and were not based on evidence inasmuch as most of the findings ere the result of mere conjecture of the enquiry officer. Rejecting the contention of the counsel SCA/8717/2008 8/33 JUDGMENT for the appellant-bank that the tribunal, in refusing to accord approval and in disregarding the findings recorded by the enquiry officer, exceeded its jurisdiction conferred by S.33(2)(b) of the Act and the tribunal having once held that the enquiry was fair, it had no jurisdiction to go into the correctness of the findings of the enquiry officer as an appellate Court, held that the tribunal can disregard the findings given by the enquiry officer in an application under S.33(2)(b) of the Industrial Disputes Act only if the findings are perverse. The test of perversity is that the findings may not be supported by legal evidence. Yet another case of perversity is that when the findings are such which no reasonable person could have arrived at on the basis of the materials before him. Though in regard to certain elements of the acts of misconduct, the tribunal erred in assessing the perversity of the evidence adduced before the enquiry officer at the domestic enquiry, and though such an enquiry officer was not bound to observe the technical rules of evidence, held in the instant case that substantive rules of evidence which would form part of principles of natural justice have been ignored by the enquiry officer, when he based his findings on hearsay evidence. It is true that in various cases it has been held that domestic tribunals like an enquiry officer are not bound by the technical rules about the evidence in the Indian Evidence Act but it has nowhere been laid down that even substantive rules which would form part of principles of natural justice also could be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom enquiry is held and that the statements made behind the person charged are not to be treated as substantive evidence is one of the basic principles of natural justice which cannot be ignored on the mere ground that domestic SCA/8717/2008 9/33 JUDGMENT tribunals are not bound by the technical rules of procedure contained in the Evidence Act. A domestic tribunal would not be justified in recording its finding on the basis of hearsay evidence without having any direct or substantive evidence in support of such findings. In other words, the findings recorded by the enquiry officer must be supported by legal evidence. The evidence should consist of statements made in the presence of the workman charged and exception is envisaged where the previous statements could be used after giving copies of the statements well in advance to the workman charged but with further qualifications that previous charge must be affirmed as truthful in a general way when the witness is actually examined in the presence of the workman charged. Applying the above principles and on merits, held that the findings of this enquiry officer were not based on any legal evidence in regard to the two charges levelled against the workman even though partly the first of the charges could be held to be proved.“ 12. In respect to the recent decision which has been referred by learned advocate Mr. Rawal as referred above, recently, this Court had an occasion to consider these two decisions in Special Civil Application No.6579 of 2008 dated 25th April 2008, in which, the learned advocate Mrs. Sangeeta Pahwa is appearing on behalf of petitioner and learned advocate Mr. Hardik C. Rawal is appearing on behalf of respondent. The relevant observations made by this Court in Para 17 to 23 and 25. Therefore, the same are quoted as under : “17. The aforesaid decision is considered and relied upon by Apex Court recently in case of Employers in relation to the Management of West Bokaro Colliery of M/s. TISCO Ltd., v. The Concerned Workman, Ram Pravesh Singh reported in JT 2008 (2) SC 272, where, it is held that Labour Court or Tribunal had no power to interfere in the findings of domestic SCA/8717/2008 10/33 JUDGMENT inquiry as an appellate court. The relevant observation made by Apex Court in Para 19 and 20 are quoted as under : “19. Tribunal has set aside the report of the Enquiry Officer and the order of dismissal passed by the Punishing Authority by observing that the charges against the respondent were not proved beyond reasonable doubt. It has repeatedly been held by this Court that the acquittal in a criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is well settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental proceeding is preponderance of probabilities. 20. Learned Counsel for the respondent cited two cases The Workmen of M/s. Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors. [(1973) 1 SCC 813] and South Indian Cashew Factories Workers Union vs. Kerala State Cashew Development Corpn. Ltd.& Ors. [(2006) 5 SCC 201], to contend that the Labour Court in exercise of its jurisdiction under Section 11A could have come to a different conclusion. There is no quarrel with this proposition of law. The Labour Court could have awarded lesser punishment in the given facts and circumstances of the case. In a case where two views are possible on the evidence on record, then the Industrial Tribunal should be very slow in coming to a conclusion other than the one arrived at by the domestic Tribunal by substituting its opinion in place of the opinion of the domestic Tribunal.“ SCA/8717/2008 11/33 JUDGMENT 18. The net result of aforesaid two decisions which have been recently given by Apex Court as referred above after not challenging the legality and validity of departmental inquiry by workman or preliminary issue decided by Labour Court that departmental inquiry is legal and valid, then, workman is not entitled to challenge the finding given by inquiry officer to the effect that finding recorded by inquiry officer is baseless and perverse. Section 11A came into force on December 15, 1971 and not having any retrospective effect. Therefore, Section 11A is quoted as under : “11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. - Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a labour court, tribunal or national tribunal for adjudication and in the course of adjudication proceedings, the labour court, tribunal or national tribunal as the case may be is satisfied that the order of discharge or dismissal was not justified, it may by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require; Provided that in any proceeding under this section, the labour court, tribunal or national tribunal as the case may be, shall rely only on the material on record and shall not take any fresh evidence in relation to the matter.” SCA/8717/2008 12/33 JUDGMENT 19. Regarding Section 11A in the statement of object and reason, it is stated as follows in case of The Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd., v. The Management and Others reported in (1973) 1 SCC 813 : “3. Regarding Section 11A, in the Statement of Objects and Reasons it is stated as follows :- "In Indian Iron and Steel Co. Ltd. v. Their Workmen, (AIR 1958 S.C. 130 at p. 138), the Supreme Court, while considering the Tribunal's power to interfere with the management's decision to dismiss, discharge or terminate the services of a workman, has observed that in case of dismissal on misconduct, the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management. The International Labour Organisation, in its recommendation (No. 119) concerning termination of employment at the initiative of the employer, adopted in June 1963, has recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination among others, to a neutral body such as an arbitrator, a Court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and the other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organization has further recommended that the neutral body should be SCA/8717/2008 13/33 JUDGMENT empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned unless reinstated with unpaid wages, should be paid adequate compensation or afforded some other relief. In accordance with these recommendations, it is considered that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workmen should not be limited and that the Tribunal should have the power in cases wherever necessary to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions-if any, as it thinks fit or give such other reliefs to the workmen including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. For this purpose, a new S. 11A is proposed to be inserted in the Industrial Disputes Act, 1947........." 20. Section 11A is inserted in statute book because of decision of Apex Court in case of