SCA/6585/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6585 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AARASURI AMBAJI MATA DEVASTHAN TRUST - Petitioner(s) Versus GEMARJI MAGANBHAI RAVAL - Respondent(s) ========================================================= Appearance : MR PREMAL R JOSHI for Petitioner(s) : 1, MR HS MUNSHAW for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 15/07/2008 ORAL JUDGMENT Rule. Mr. HS Munshaw, learned advocate appearing for respondent waives service of Rule. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing today. SCA/6585/2008 2/10 JUDGMENT 2. By this petition, the petitioner, Administrator of Aarasuri Ambaji Mata Devasthan Trust (hereinafter referred to as the 'petitioner trust') Ambaji Temple, has challenged an award dated 17.1.2008 passed by the Labour Court, Palanpur in Reference (LCP) No. 36/2008 (Old No. 101/87). 3. It appears from perusal of the impugned award, that the petitioner trust had initiated disciplinary actions against 2 employees working as security personnel, on the charge of eating meat in the premises (compound) of the temple. One of the two persons was a permanent employee working on the post of Jamadar and the other one was working as a guard on daily wage basis. After conclusion of the departmental enquiry and considering the gravity of action initially the petitioner Trust passed orders terminating the services of both employees. Subsequently the petitioner trust on its own motion cancelled the order of termination in respect of one of the two charge sheeted persons i.e., its permanent employee and reinstated him by substituting the penalty with penalty of stoppage of one increment. However, The termination order against the present respondent – a daily wager - continued. Aggrieved by the said action and discrimination, the respondent herein raised an industrial SCA/6585/2008 3/10 JUDGMENT dispute which culminated into aforesaid reference proceedings. 4. During the reference proceedings, the petitioner herein, after filing written statement, appears to have ignored the proceedings and has not brought any evidence, either oral or documentary, on record to justify its action. It is, however, not in dispute that the petitioner Trust has reinstated its permanent employee, but has continued the decision and action of termination qua the respondent herein. 5. The respondent contended before the Labour Court that any charge of eating meat was not levelled against him but was levelled against the other employee, (i.e. permanent workman). On the other hand, the petitioner trust seems to have claimed that similar charge was levelled against the respondent also. 6. After considering the material on record, the learned Labour Court passed the impugned award directing reinstatement of the respondent herein mainly on the ground that the petitioner trust's action exhibits discrimination, however denied the claim for backwages. Aggrieved by the SCA/6585/2008 4/10 JUDGMENT said award, the petitioner trust has preferred the present petition. 7. Mr. Joshi appears for the petitioner trust and Mr. Munshaw appears for the respondent. I have extensively heard the advocates of the respective parties. 8. Mr. Joshi submitted that the action of the respondent herein was totally against the discipline and culture of the Trust and also against the sentiments and religious feelings of the devotees/followers of Maa. Ambaji. In reply to the submission by respondent that such an act is not expressly prohibited and/or specified as a misconduct, Mr. Joshi submitted that the action of eating meat in the premises of a Hindu temple would amount to misconduct, though may not be specifically mentioned. He also submitted that such an action amounted to indiscipline and therefore the action of the petitioner Trust is justified and the Labour Court has erred in condoning the same and in directing reinstatement of the petitioner with continuity of service. 9. On the other hand, Mr. Munshaw for the respondent submitted that the decision and action of the SCA/6585/2008 5/10 JUDGMENT petitioner Trust is hit by discrimination and also arbitrariness. He also submitted that the petitioner Trust has failed, before the trial Court to establish that the respondent had actually participated or joined the other person Bhuraji Shankarji (i.e., the permanent employee of petitioner Trust and whose penalty order is modified) in the act of eating meat in the Temple premises. Mr. Munshaw further submitted that in the facts and circumstances of the case, the Labour Court has rightly exercised the discretionary jurisdiction under Section 11A of the Act more particularly because the termination order in respect of the permanent employee, who was the co- accused, has been recalled by the petitioner Trust and he has been reinstated. 10. On considering the submissions of Mr. Munshaw and Mr. Joshi and upon considering the impugned award, it transpires that the petitioner Trust has not examined any witness before the learned Labour Court and has failed to establish the case made out by it in its written statement. The fact of the matter is that the petitioner trust, despite having been given opportunity, did not examine any witness in support of the case made out in its written statement or didn't produce any documents. The petitioner Trust also appears to SCA/6585/2008 6/10 JUDGMENT have failed to produce the inquiry proceedings from which the Court could examine and determine the actual charge against the respondent and as to whether the charge was actually proved or not. In the reference proceedings as well as in present petition, the petitioner Trust has also failed to give any satisfactory explanation and has failed to make out any justification in respect of its action of recalling the termination order in respect of permanent employee while continuing the decision of termination qua the respondent, who was engaged on daily wage basis. 11. There is total silence and complete lack of explanation justifying such discriminatory approach and action. When both the persons were co-accused and when, even as per the petitioner Trust, the charge levelled against both the persons was the same, then it was obligatory for the petitioner Trust to make out a case for justifying the decision to recall the termination order qua only one and thereby imposing different penalties, and that too after once having imposed similar penalty qua both. This is not at all to suggest that different penalties cannot be imposed qua different employees in cases where joint departmental inquiry is held. SCA/6585/2008 7/10 JUDGMENT 12. True it is that an employer has a right to impose different penalties even qua co-accused, and/or in cases of joint or common inquiry, but that can be done on justifiable grounds and not on sheer ipse-dixit or whims and fancy. Employer certainly has an obligation to make out justifiable ground for imposing different types of penalties or penalty of different quantum when there are co-accused`and the charges levelled against the co-accused are the same. An employer can, by taking into account the extent of involvement in the incidence constituting misconduct, the past record, the length of service,the post-incidence conduct and approach of the employee and such other factors, impose different penalties on co-accused, though charged for same misconduct, but the aforesaid and such other aspects and factors must be taken into consideration and the facts and grounds, in support of such decision must reflect from the record and from the decision. The decision making process must disclose application of mind to relevant aspects and the decision should be a decision taken judiciously. If this is not reflected from the decision, then it may lead to, in case of co- accused for same incidence or similar charge, presumption of discrimination or a “pick-and-choose” approach by the disciplinary authority. SCA/6585/2008 8/10 JUDGMENT 13. As per the findings of the Labour Court, which appear to be correct and justified, in the present case the petitioner has failed to give any explanation, much less any satisfactory explanation for such discriminatory treatment meted out to the respondent. The record shows that the petitioner could not show, from the material before the Court, the reason and justification for imposing different penalty to these two co-accused for similar charge and that too by subsequently modifying the penalty in respect of only one of the two accused. Even before this Court during the hearing of present petition, the petitioner has not been able to put forward any explanation, much less satisfactory justification, in support of such action. It also comes out from the award that it is in view of such facts and circumstances that the Labour Court found the penalty disproportionate and discriminatory and therefore it considered appropriate to exercise its discretionary jurisdiction under Section 11A and to set aside the respondent's penal order. In the facts of the case, the Labour Court appears justified in the said decision also because even as per the standards of the petitioner Trust, the penalty of stoppage of one increment was proportionate to the charge since that is the penalty imposed SCA/6585/2008 9/10 JUDGMENT on the other employee i.e., the co-accused. 14. Under the circumstances, it cannot be said that the Labour Court has committed any error in exercising its jurisdiction in setting aside the penalty order qua the respondent. However, it cannot be said so for the entire award and final decision inasmuch as the Labour Court, after setting aside the penalty order and directing reinstatement of respondent in service, proceeded further and has also granted benefit of continuity of service also. To that extent, the award is not justified. The Labour Court appears to have lost sight of the fact that the respondent was working on daily wage basis and that therefore benefit of continuity of service could not have been conferred. Hence, the said direction deserves to be set-aside. Realising this aspect, Mr. Munshaw was fair and quick to stipulate that the respondent was agreeable if that part of the direction was set aside and the award to that extent modified. The respondent was engaged on daily wage basis and that therefore the benefit of continuity of service could not have been granted. The petitioner has failed to make out any case for interference under Article 227 of the Constitution of India, in the Labour Court's decision to set aside the penalty order. The impugned award, except to the aforesaid extent, does not call for any interference and does SCA/6585/2008 10/10 JUDGMENT not deserve to be wholly set aside, as prayed for. 15. Considering the facts and circumstances and the stipulation on behalf of the petitioner that he does not insist for and is ready to forego the benefit of continuity, the petition deserves to be allowed so far as the direction granting continuity of service is concerned. The said direction is set aside and the direction for reinstatement alone is maintained. In the circumstances, the respondent will be entitled for reinstatement as fresh employment, however on the terms and conditions as are applicable to the employees of petition on daily wage basis. 16. With the aforesaid observations and directions, the petition is partly allowed and it stands disposed of accordingly. Rule made absolute only to the aforesaid limited extent. [ K.M. Thaker, J. ] rmr.