IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2023 of 2002 For Approval and Signature: HON'BLE MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- JAGDISHKUMAR KANJIBHAI CHAUDHARY Versus BANASKANTHA DIST. CENTRAL CO. OP. BANK LTD. -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 2023 of 2002 MR KS JHAVERI for Petitioner No. 1 NANAVATI ASSOCIATES for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE H.K.RATHOD Date of decision: 14/11/2003 ORAL JUDGEMENT Heard learned senior advocate Mr.S.K.Zaveri on behalf of the petitioner and learned advocate Mr.Krunal Nanavati for respondent - Bank. At the outset, considering the facts and circumstances of the case and the manner and act of the employer, it is pertinent to note that the observations made by the Bombay High Court [ Justice R.J.Kochar, J. ] in case of Standard Charered Grindlays Bank Ltd. v. Govind Phopale and another, reported in 2003 [96] FLR 145, of which, the relevant observations made in para-17 and 18 are quoted as under :- "17. I need not stree the fact tha wage is the real content of the Article 21. If we were to take out the wage content from this Article 21 it would be reduced to a dead letter not worth even for a decoration. IN the absence of the source of livelihood which is protected by Article 21, the other fundamental righs would sound hollow and empty words and would collapse in no time as a dilapidated house. The workman and his family should not be made to stare merely on the pretext tha proceedings under Section 33[2][b] for approval of the action taken by the emploher is pending though he is told by law that the jural relationship continues and he still carries the label that he is an employee of the applicant employer before the tribunal. This jural sense of employment must put bread in his empty belly. He cannot be denied the wage content of his jural relationship by drawing a fine distinction of law point that he has factually ceased to be in employment as the employer has already passed an order of dismissal / discharge though he still continues to be in the employment of the employer in law. In the case of Fakirbhai, [vide supra], the Supreme Court was very much conscious of the delay in disposal of discharg / dismissal matters where the workmen concerned needed relief very badly. The Supreme Court has, therefore, considering the crucial aspect of the delay has given a great solace to the working class whose fate is covered under Section 33 of the Act as a whole not to be subdivided by the sub-sections. 18. The aforesaid discussion is the essence of the wisdom which I have drawn from the following a few recent judgments of the Supreme Court. I am not quoting the quaotable quotes from the said judgments to state what is very well knwon and well established needing no elaboration : C.E.S.E., Ltd. V. Subhash Chandan Bose, in Para-30, at pages 355 and 356: "... The right to social jusitce is a fundamental right. Right to livelihood springs from the right to life guaranteed under Article 21. The health and strength of a wroker is an integral facet of right to life. The aim of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all. Right to human dignity, development of personality, social protection, right to rest and leisure as fundamental human rights to common man mean nothing more than the status without means. To the tillers of the soil, wage earners, labourers, wood cuters, rickshaw pullers, scaverngers and hut dwellers, the civil and political rights are "mere cosmetic" rights. Socio-economic and cultural rights are their means and relevant to them to realise the basic aspeirations of menaingul right to life. The Universal Declaration of Human Rights, International Convention on Economic, social and cultral rights, recognise their needs which include right to food, clothing, housing, education, right to work, leisure, fair wages, decent working condtiions, social security, right to physical or mental health, protection of their families as intergral part of right to life. Our Constitution in the preamble and Part IV reinformce them compendiously as socio-economic jusice, a bedrock to an egalitarian social order. The right to social and economic justice is thus a fundamental right." 1. In the present petition, the petitioner has challenged the order passed by the Industrial Court at Ahmedabad in Appeal [IC] No.69 / 2001 and Appeal [IC] No.82 / 2001 dated 28th November, 2001, wherein the appeal filed by the petitioner being Appeal No.82 / 2001 dismissed and appeal filed by the respondent No.69 / 2001 is allowed and the order passed by the Labour Court in T.Application No.2 / 2001 vide Exh.26 dated 4.6.2001 is set aside. 2. The brief facts giving rise to the present petition are as under : The petitioner was working with the respondent Bank. He was served with show cause notice dated 6th September, 1999 and on that basis, departmental inquiry was conducted by the respondent Bank on 31st November, 1999 and thereafter, the petitioner was dismissed from service on 31st January, 2001. Against the said dismissal order, the petitioner had approached the labour Court under Section 42 [4] of the Bombay Industrial Relations Act, 1946 to the respondent bank and thereafter, the petitioner had filed T.Application No.2/2001 before the labour court, Palanpur. The said application was filed by the petitioner. The respondent bank has filed reply against the application and documents were produced by both the parties before the labour court. The respondent bank had filed reply vide Exh.8 and 9. Vide Exh.24 the petitioner workman has given Purshis wherein the workman has admitted legality and validity of the departmental inquiry. On the basis of that purshis, both the parties have filed Application Exh.25 closing their oral evidence and thereafter, the matter was kept for argument before the labour court. The labour court has heard both the learned advocates appearing on behalf of the respective parties. Thereafter, the labour court has come to the conclusion that show cause notice dated 6th September, 1999 is related to the period from 1984-99 and departmental inquiry was also held by the respondent Bank about misconduct which was committed by the petitioner workman from 1984-99 and ultimately, dismissal order has been passed by the respondent Bank on 31st January, 2001. Therefore, the labour court has come to the conclusion that show cause notice dated 6th September, 1999 related to period from 1984-99 that show cause notice is not legally maintainable but the labour court has not gone to the question on the ground that the workman has admitted legality and validity of the departmental inquiry. Therefore, the labour court has come to the natural conclusion, in other words, that charges levelled against the workman are found to be proved. The labour court has discussed the misconduct which was alleged against the petitioner workman in show cause notice dated 6th September, 1999 which are relating to some irregularities not to remain present on duty for a particular period, leave the place of working without prior permission and some occasion, refused to make payment to the customers. The labour court has considered the reply given by the petitioner workman about the workload and ultimately the labour court has thought it fit that the workman for the period from 1984-99 committed various misconducts which amounts to breach of standing orders of the respondent Bank and these are all minors and major misconducts committed by the petitioner workman and therefore, just to give one opportunity to the petitioner workman to improve himself, the labour court has thought it fit to deny backwages of the total period but only granted reinstatement which according to opinion of the labour court, would be just and fair in light of the facts and circumstances of the case. Accordingly, the labour court has passed the order on 4th June, 2001 granting reinstatement without backwages of the interim period with direction to the respondent Bank to reinstate workman within 30 days from the date of publication of the order. This order has been challenged by both the parties before the Industrial Court under Section 84 of the Bombay Industrial Relations Act, 1946. The Industrial Court, Ahmedabad has entertained both the appeals and passed common order on 28th November, 2001. The Industrial Court, Ahmedabad has rejected the appeal filed by the petitioner workman about claiming the amount of backwages but allowed the appeal filed by the respondent bank while setting aside the reinstatement order which has been passed by the labour court in favour of the petitioner workman. 3. Learned senior advocate Mr.S.K.Zaveri appearing on behalf of the petitioner workman has submitted that the industrial court has committed gross error in coming to the conclusion that once the inquiry is admitted by the workman, misconduct is found to be proved then, the labour court should not have passed the order of reinstatement and that beyond the purview of the powers under Section 78 & 79 of the Bombay Industrial Relations Act, 1946. Learned advocate Mr.Zaveri further submitted that powers under Section 78-79 which having by the labour court in response to the T.Application filed by the workman is like powers under Section 11-A of the Industrial Disputes Act, 1947 and the labour court can modify the punishment if ultimately the labour court has thought it fit that looking to the misconduct in question if the punishment is harsh, unjustified and unreasonable. Therefore, learned advocate Mr.Zaveri submitted that the workman who has admitted the legality and validity of the inquiry and that aspect has been considered on the ground that misconduct is proved but the labour court has considered the question of punishment and ultimately the labour court has come to the conclusion that looking to the misconducts for the period from 1984-1999 and lapses committed by the workman, punishment of dismissal is harsh, unjustified and unreasonable. Therefore, the labour court has not granted any amount of backwages to the workman by way of penalty and only granted reinstatement with a view to have some improvement in future in the conduct of the workman and for that, the labour court having powers to pass such order even in case when the misconduct is proved against the workman. Therefore, according to him, the industrial court has committed gross error not appreciating the said legal aspect and come to the conclusion that once misconduct is proved, the labour court has no powers under the provisions of the Bombay Industrial Relations Act to modify the punishment or to consider the question of unjustified punishment imposed by the employer. Therefore, learned advocate Mr.Zaveri submitted that the order of industrial court dismissing the appeal of the petitioner workman and allowing the appeal of the employer is required to set aside. 4. Learned advocate Mr.Krunal Nanavati appearing on behalf of the respondent Bank has submitted that the order passed by Industrial Court is perfectly all right and as such, no error has been committed by the Industrial Court and therefore, this Court may not interfere while exercising the limited jurisdiction under Article 227 of the Constitution of India. He also emphasised that once the misconduct is proved and not challenged the inquiry and no victimization is proved, then the labour court has no powers to modify the punishment imposed by the employer. He also emphasised again that in Industrial Disputes Act, there is specific provision made in the statute under Section 11-A of the Industrial Disputes Act, 1947 which gives the powers to the labour court to modify punishment if labour court is satisfied looking to the misconduct in question, if punishment is unjustified, unreasonable and not legal. Similar powers are not under the statutory provisions of the Bombay Industrial Relations ACT, 1946 and therefore, the labour court cannot modify the punishment once the inquiry is admitted by the workman and misconduct is proved against the workman. Therefore, industrial Court has rightly passed the order allowing the appeal filed by the respondent bank. He also submitted that there is no finding or observation given by the labour court that the punishment is excessive and therefore, the labour court has just granted reinstatement without any reason and therefore, the order is passed by the labour court granting reinstatement is bad which has been rightly set aside by the Industrial Court allowing the appeal of the respondent Bank. Except that, both the learned advocates have not made any further submissions before this Court. 5. In respect of the first contention raised by the learned advocate Mr.Krunal Nanavati that while exercising the powers under Section 78 & 79 of the Bombay Industrial Relations Act, 1946, the labour court having no powers to interfere with the punishment imposed by the employer when the misconduct is found to be proved before the labour court. This aspect has been examined by the Division Bench of this Court in case of Ahmedabad New Textile Mills v. Textile Labour Association reported in 1988 [2] G.L.H. 498. The Division Bench of this Court has interpreted the words and phrases "Propriety" is capable of a variety of meanings and after considering Oxford English Dictionary and the Division Bench of this Court has come to the conclusion that the labour court while exercising the powers under Section 78 and 79 to interfere with the punishment when the order of imposing the punishment is proportionate, harsh. The relevant discussion made in Para-6 & 10 produced as under : "6. The question then is, what is the ambit of the Labour Court's jurisdiction under sub-clause [i] of clause [a] of paragraph A of Section 78[1] of the Act ? Under the said provision the Labour Court is empowered to decide a dispute regarding the propriety or legality of an order passed by an employer acting or purporting to act under the standing orders. Both the tests of legality and propriety have to be satisfied to defeat any action initiated under Section 79 read with the relevant clause of Section 78[1]. Even if an order is legal, that by itself is not enough. It must also be shown to be proper. If an order is not in conformity with the provisions of the Act or the rules or standing orders or is violative of the principles of natural justice and fairplay or the like, it can be interfered with by the Labour Court as being illegal. But even if the order is legal, it can still be questioned on the ground that the same lacks in propriety. In a case where the legality of the order is not questioned, as in the present case, the employer must still show that his order is proper. The expression "propriety" is capable of a variety of meanings. Its shades and nuances would have to be gathered from the context in which that word appears and the facts and circumstances of each case. In the Oxford English Dictionary, Volume VIII, the word "propriety" is stated to mean : that which is proper [ in various senses of the adjective], fitness, appropriateness, aptitude, suitability; appropriateness to the circumstances or conditions; conformity with requirement, rule or principle, rightness, correctness, justness, accuracy, etc. Therefore, when the Labour Court is called upon to decide a dispute regarding the propriety of an order passed by an employer, it is open to the labour court to decide whether the said order is proper, fit, appropriate, suitable and in conformity with rightness, correctness, justness and accuracy. In doing so, the Labour Court can also examine whether the punishment imposed by the employer under the impugned order is just and proper in the facts and circumstances of the case because punishment forms part of the employer's order, the propriety whereof is open to scrutiny by the labour court. The employer's order may comprise of the allegations, averments, facts, evidence, both documentary and oral, and reasons in support of the ultimate findings reached by the employer as well as reasons for the punishment proposed to be imposed against the delinquent. It is, therefore, obvious that when the Labour Court is invested with the power to examine the propriety of the order passed by the employer, the labour court can also consider whether in the facts and circumstances of the case the employer was justified in visiting the employee with the extreme punishment of dismissal. The order imposing the punishment is a part of the employer's order, the propriety whereof is under the scrutiny of the Labour Court and hence the Labour Court would be justified in considering the appropriateness and justness of the said order. In Sarangpur Mill case [Supra] this Court held that the expression "legality and propriety" used in paragraph A of Section 78[1] of the Act does not limit the jurisdiction of the Labour Court to a revisional jusridction.This Court held that the proceedings before the labour court were in the nature of original proceedings and hence the jurisdiction of the labour court is wider than the jurisdiction that a revisional authority exercises while deciding the question of legality and propriety of an order passed by a subordinate authority. We are, therefore, of the opinion that the contention of Mr.Buch that the labour court cannot revise the punishment if it comes to the conclusion that some of the charges levelled against the delinquent were established does not appear to be in consonance with the language of the statute. 10. What emerges from the above discussion is that the labour court is invested with wide jurisdiction to examine the propriety and legality of the employer's under the standing orders. The order passed byt he employer must be shown to be not only in conformity with law but also in conformity with justness and reasonableness. If the order passed by the employer is so disproportionately harsh as to shock judicial conscience, the labour court or the industrial court, as the case may be, would be entitled to interfere with the said order. It is, therefore, not possible to accept the extreme submission of Mr.Buch that the Labour Court or the Industrial Court has no power to interfere with the punishment imposed by the employer on proof of misconduct under the standing orders. If such a view is accepted, it would tantamount to investing the employer with the power to visit the extreme penalty of dismissal from service even for a minor misconduct. We are, therefore, of the opinion that having regard to the language of the statute, the context in which the expression appears and the underlying object of the benevolent legislation it is not possible to accede to the submission of Mr.Buch that once any misconduct mentioned in the standing orders is proved or held established, the labour court or the Industrial Court cannot interfere with the order of punishment, no matter whether it is in the facts and circumstances of the case justified or not." Therefore, in respect of the first contention which has been raised by the learned advocate Mr.Nanavati cannot be accepted in light of the observations made by the Division Bench of this Court as referred to above. The said principle has also been considered this Court Court in case of RAMESHBHAI ATRARAM PATEL V. FACTORY MANAGER, NEW SHORROCK MILLS LTD., AHMEDABAD reported in 2000 [4] GLR 2835. The relevant observations made in para-6 and 7 are quoted as under :- "6. .... xxx .... xxx .... There is another decision of the Division Bench of this Court in case of Rajnagar Textile Mills Ltd. V. Bharat J. Ptel, reported in 1994 [1] GCD 378. In the said decision, the Division Bench has held that, the question of exercising the discretion by the Labour Court and the Industrial Tribunal may be examined from the standpoint of the provisions of Sections 78 & 79 and 84 of the Bombay Industrial Relations Act, 1946. It is true that there is no express provision like Section 11-A of the Industrial Disputes Act,. 1947 which confers power on the Labour Court and other forums created under the Industrial Disputes Act, 1947 in interfering with the order of punishment of dismissal or discharge. As provided under Section 11-A I.D.Act, if the Court is satisfied that the order of discharge or dismissal was not just it may set aside the order of discharge or dismissal and direct reinstatement of workman on such terms and conditions as it may think fit or it may give such other relief to the working, including the award of any lesser punishment in lieu of discharge or dismissal; as the circumstances of the case may require. However, in absence of such specific provision, it does not mean that the Labour Court and Industrial Tribunal shall have no such powers under the Bombay Industrial Relations Act. 7. It is required to be noted that learned Advocate Mr.Gandhi has formally conceded the legal situation that the labour Court and the Industrial Tribunal, while exercising the powers under Secs. 78, 79 and 84 of the Bombay Industrial Relations have analogous powers like that of Section 11-A of the Industrial Disputes Act, 1947. So, that question has not been argued by the learned Advocate Mr.Gandhi. He concedes that the position of law that the labour Court has powers to examine the legality and propriety of the punishment imposed by the employer. ... xxx .... xxxx .... " This Court has also considered the decision of the Division Bench of this Court that what should be proper punishment, is the question requires to be decided by punishing authority or by the concerned labour court on the basis of consideration of relevant factors. This aspect has been discussed in para-8 which is quoted as under : "8. While dealing with the powers of the labour court under Section 11-A of the Industrial Disputes Act, 1947, the Division Bench of this Court in case of Gujarat State Road Transport Corporation v. Danaji Sukhaji Kodiyar, reported in 1993 [1] GCD 892 : 1994 [1] GLR 87 has held that while exercising powers under Section 11-A of the Act, the Labour Court or the Tribunal is bound to impose some punishment. What punishment should be imposed is ordinarily the question to be decided on the basis of the facts and circumstances of each case and particularly individual circumstances of the delinquent concerned, his family background, his socio-economic background, his service record, length of service and the surrounding circumstances in which he might have been compelled to commit the misconduct are some of the factors which are required to be taken into consideration, while deciding the question of punishment. These factors would naturally vary from case to case and from individual to individual. The Division Bench of this Court has also considered the decision of the Apex Court in case of Rama Kant Misra [ Supra]. There is one another decision of the Apex Court in the matter of Jintendrasinh Rathod v. Shri Baidya Nath Ayurved Bhawan Limited, reported in AIR 1984 SC 976. In the said decision, it has been held that, "the High Court was right in taking a view that when the payment of back wages either in full or part is withheld, it amounts to penalty. Withholding of back wages to the extent of half, in the facts and circumstances of the case, was therefore, by way of penalty referable to prove the misconduct and that situation could not have been answered by