SCA/1747/2000 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1747 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= HASMUKHBHAI M PATEL - Petitioner Versus ELECON ENGINEERING CO. LTD - Respondent ========================================================= Appearance : MR PRADEEP PATEL for Petitioner MR GM JOSHI for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 29/12/2008 ORAL JUDGMENT 1. Heard Shri Pradip Patel, learned counsel for the petitioner and Shri GM Joshi, learned counsel for the respondent. SCA/1747/2000 2/10 JUDGMENT 2. The petitioner has assailed in this petition under Article 227 of the Constitution of India the Order dated 1.3.1999 and Award dated 20.9.1999 passed by the Labour Court in Reference Case No. 504 of 1992 on the ground that the impugned Award and order are erroneous and therefore, same deserves to be quashed and set aside. 3. Fact in brief as could be seen from the award deserve to be set out as under. 4. The petitioner was working as Turner in the respondent Company. On earlier occasion, the petitioner was suspended and there were some court proceedings and he was reinstated in the Roller Shop Division on 23.4.1986. The earlier termination of the petitioner was in the year 1984 and after some litigation, he was reinstated on 23.4.1986. The petitioner received chargesheet on 21.5.1986 for misconduct of insubordination and instigating fellow workmen to give less production, resulting into less production of 30 to 50%. The petitioner gave reply to the said show cause notice vide his letter dated 24.5.1986 denying the charges leveled against him and requested for dropping the said notice. The respondent Company thereafter issued another notice on 31.5.1986, which was replied by the petitioner workman vide his letter dated 6.6.1986. Under his reply dated SCA/1747/2000 3/10 JUDGMENT 6.6.1986, the petitioner made allegation with regard to victimization and state that earlier notice was not for seeking any explanation but it was mere in nature of advise and therefore, the notice itself was not complete. Notice which was advisory did not contain any allegation. The workman demanded from the Company that standing order, which is referred to in the notice, shall be displaced in legitimate writing outside his department so that he can understand the legality thereof and he asked the company to send documents at his residence, which he demanded without specifying the documents. As the explanation was not satisfactory, the Company informed the petitioner vide his letter dated 12.6.1986 that the inquiry is decided to be held and it will start from 20.6.1986 and if he fails to remain present, then, it will proceed ex-parte. Ultimately, as the workman did not remain present, ex-parte inquiry was conducted and finding of guilt was recorded and workman was issued termination order, which was assailed in the aforesaid Reference as stated hereinabove. 5. Shri Pradip Patel, learned counsel appearing for the petitioner vehemently submitted that both the orders, holding inquiry to be proper as well as awarding of compensation, cannot be said to be just and proper. He submitted that the workman has all along demanded documents and as SCA/1747/2000 4/10 JUDGMENT the documents were not supplied to him, he did not participate in inquiry and as he had not participate in inquiry, the inquiry was vitiated and the award impugned is untenable. Shri Patel has invited this court's attention to various documents wherein the workman could be said to have asked the documents at least two in numbers i.e. during inquiry and another after inquiry when the show cause notice was issued. The inquiry therefore, was not in consonance with the provisions of law and therefore the same could not have been held to be just and proper, as it is done by the Court in the impugned Award. 6. The Award of compensation is assailed as being absolutely inadequate and improper and when the inquiry itself was not proper, the Court ought not to have taken that fact into consideration for exercising the provisions of Section 11-A of the I.D. Act and ordered only compensation. Shri Patel attempted to read into the testimony of the workman at Ex.92 that the statement with regard to workman's inability to perform duty except running errand cannot be said to be the statement indicating his capacity to work but the said statement was made only for the purpose of claiming reinstatement and grant of back wages. Shri Patel has further submitted that statement of claim is not produced along with this petition and is not available with him. SCA/1747/2000 5/10 JUDGMENT 7. Shri Joshi has relied upon the judgment of the Apex Court in case of RANJAN KUMAR MITRA VS. ANDREW YULE & CO. LTD. AND OHTERS, reported in (1997) 10 SCC pg.386, and submitted that the tenor of the document produced would go to show that the workman had in fact not been interested in pursuing the remedy and once having chose not to participate in inquiry, has no right to challenge the outcome on merits. He further submitted that the employer has not challenged the Award of compensation and an attempt was made by the employer to pay the compensation to workman but the said attempt yielded no result as the workman has chosen not to accept the same. Shri Joshi therefore, submitted that the petition deserves to be dismissed as having no merits. 8. This Court has heard learned counsel for the parties at length and perused the impugned Award and orders. The charges leveled against the workman and his subsequent attitude during the inquiry will certainly in appreciating as to how the events developed and in that context, only the respective conduct of the parties and their purport deserved to be viewed. 9. Shri Patel, learned advocate for the petitioner has taken strenuous efforts to indicate infirmities in the inquiry proceedings. Shri SCA/1747/2000 6/10 JUDGMENT Patel invited this court's attention to the letters addressed by the petitioner, at least two letters and contended that the inquiry cannot be said to be in consonance with law and therefore, the order of Labour Court holding the same to be just and proper deserves to be quashed and set aside. Shri Patel though assailed the order of the Labour court in respect of it's finding with regard to validity of the inquiry, could not find fault with the Court as to whether the submission which he is making at bar have laid down any foundation thereof in the statement of claim. Shri Patel has candidly admitted his inability to indicate any such foundation for raising pleas in respect of the inquiry. Shri Patel was called upon to indicate as to where the foundation for raising plea of vitiating the inquiry is raised but he could not show any such foundation. It is required to be noted that the letter relied upon by Shri Patel for indicating infirmities in the inquiry would rather go to show that the Labour Court's finding with regard to petitioner's non- cooperation in inquiry or rather is recalcitrant attitude in the inquiry, was absolute just and proper and correct finding. The chargesheet was issued in the year 1986 and ultimate termination order can only be passed in the year 1988. Had the company wanted to dispense with the service of the petitioner anyhow and inquiry was only sham and bogus as alleged by Shri Patel, then it SCA/1747/2000 7/10 JUDGMENT would have been over within no time but the time taken in concluding the inquiry from the date of chargesheet, that in itself would go to show that Shri Patel's submission with regard to infirmities in the inquiry cannot be sustained. Shri Patel could not indicate as to what way the documents actually demanded and how non-supply thereof in fact prejudice the workman. The workman has chosen not to participate in the inquiry right from the beginning as he did not remain present in single sitting. The findings of the Labour Court with regard to inquiry go to show that on number of occasions, the petitioner was afforded an opportunity to attend the inquiry, which he did not avail. The petitioner was granted permission to take help of fellow workman, that finding has not been assailed with cogent evidence before this Court. The findings of the Labour Court is rather to the effect that workman was given all opportunities and the documents were supplied as could be seen from Exh.56. The Labour Court has elaborately discussed the non-cooperation and all recalcitrant attitude of workman and his negligence in attending the inquiry. The Labour Court has recorded that as per Ex.44, the petitioner was permitted to take advise of his fellow workman in the inquiry and hence the contention with regard that the workman was not given an opportunity to defend his case was not believed. Ex. 61 clearly indicates non- SCA/1747/2000 8/10 JUDGMENT cooperation on the part of petitioner workman in the inquiry. The workman was requested time and again by registered AD letter also to remain present in the inquiry, which were not heeded to by the petitioner workman and therefore, ultimately, on 23.2.1988, as recorded by the Labour Court, the respondent had to decide to hold ex-parte inquiry and to finish the same. In the context of the attitude of the workman, the decision of the Apex Court cited at bar by Shri Joshi would be certainly relevant and therefore, the findings of the Labour Court with regard to justness of the inquiry cannot be said to be so perverse so as to call for any interference under Article 227 of the Constitution of India. 10.Having come to the conclusion that the findings of the Labour Court with regard to justness being proper, the question arose as to whether the award, whereunder, lump sum amount is ordered to be paid could be said to be unjust or improper. The answer would be “NO”. It is required to be noted that the Labour Court has observed that the termination was not improper but looking to the misconduct, the termination was disproportionate and therefore, it has exercised its power to grant some relief under Section 11-A of the ID Act. It is required to be noted that in the facts and circumstances of the case, the Labour Court's discretion for awarding lump sum payment of Rs.1,50,000/- in lieu of SCA/1747/2000 9/10 JUDGMENT reinstatement cannot be said to be perverse or unjust from any angle. In fact, Ex.92 contains the testimony of the workman whereunder, it has come out on record about the workman's inability to work, which would prevent him from gainful employment was for the purpose of justifying that he was not gainfully employed and so that the back waged would not be continued but the Court has misconstrued the same to be his incapacity to work after and if he is reinstated. 11.This Court is unable to agree with the construction canvassed by Shri Patel in testimony of workman concerned. The Labour Court has relied upon the same. Apart therefrom, over all facts and circumstances of the case couple with workman's recalcitrant attitude, the court did not grant reinstatement and therefore, appropriate relief in the form of awarding lump sum payment of Rs.1,50,000/- in lieu of reinstatement has been granted. This Court is of the view that said award, therefore, cannot be said to be perverse so as to call for any interference under Article 227 of the Constitution of India. The petition, therefore is required to be rejected and accordingly, it is rejected. Rule discharged. However, there shall be no order as to costs. (S.R.BRAHMBHATT, J.) SCA/1747/2000 10/10 JUDGMENT pallav