1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PEITION NO.1561 OF 2004 WITH WRIT PETITION NOS.2575, 1560, 2576, 1562 & 2766 OF 2004 W.P. 1561/04 : Vinayak Shejwadkar. ...Petitioner. Versus Bombay Khadi & Village Industries Association. ...Respondent. ....... Mr. C. U. Singh, Senior Advocate with Ms. Melanie D'Souza, Mr. Mahesh Londhe and Ms. Neha Singh i/b. Sanjay Udeshi & Co. for the Petitioners. Mr. P. K. Rele, Senior Advocate with Mr. Tayde and Mr. R. P. Rele i/b. Mr.Piyush Shah for the Respondent. ...... W.P. 2575/04 : Bombay Khadi & Vuillage Industries Association. ...Petitioner. Versus Vinayak Shejwadkar. ...Respondent. ..... Mr. P. K. Rele, Senior Advocate with Mr. Tayde and Mr. R. P. Rele i/b. Mr.Piyush Shah for the Petitioner. Mr. C. U. Singh, Senior Advocate with Ms. Melanie D'Souza, Mr. Mahesh Londhe and Ms. Neha Singh i/b. Sanjay Udeshi & Co. for the Respondent. ..... W.P. 1560/04 : 2 Gurunath N. Prabhu. ...Petitioner. Versus Bombay Khadi & Village Industries Association. ...Respondent. ....... Mr. C. U. Singh, Senior Advocate with Ms. Melanie D'Souza, Mr. Mahesh Londhe and Ms. Neha Singh i/b. Sanjay Udeshi & Co. for the Petitioners. Mr. P. K. Rele, Senior Advocate with Mr. Tayde and Mr. R. P. Rele i/b. Mr.Piyush Shah for the Respondent. ...... W.P. 2576/04 : Bombay Khadi & Vuillage Industries Association. ...Petitioner. Versus Gurunath N. Prabhu. ...Respondent. ..... Mr. P. K. Rele, Senior Advocate with Mr. Tayde and Mr. R. P. Rele i/b. Mr.Piyush Shah for the Petitioner. Mr. C. U. Singh, Senior Advocate with Ms. Melanie D'Souza, Mr. Mahesh Londhe and Ms. Neha Singh i/b. Sanjay Udeshi & Co. for the Respondent. ..... W.P. 1562/04 : Sham V. Khanvilkar. ...Petitioner. Versus Bombay Khadi & Village Industries Association. ...Respondent. ....... Mr. C. U. Singh, Senior Advocate with Ms. Melanie D'Souza, Mr. Mahesh Londhe and Ms. Neha Singh i/b. Sanjay Udeshi & Co. for the Petitioners. Mr. P. K. Rele, Senior Advocate with Mr. Tayde and Mr. R. P. Rele i/b. Mr.Piyush Shah for the Respondent. ...... W.P. 2766/04 : Bombay Khadi & Vuillage Industries Association. ...Petitioner. Versus 3 Sham V. Khanvilkar. ...Respondent. ..... Mr. P. K. Rele, Senior Advocate with Mr. Tayde and Mr. R. P. Rele i/b. Mr.Piyush Shah for the Petitioner. Mr. C. U. Singh, Senior Advocate with Ms. Melanie D'Souza, Mr. Mahesh Londhe and Ms. Neha Singh i/b. Sanjay Udeshi & Co. for the Respondent. ..... CORAM : DR. D.Y. CHANDRACHUD, J. September 28, 2006. ORAL JUDGMENT : This batch of six Writ Petitions under Article 226 of the Constitution of India arises out of orders passed by the Industrial Tribunal by which approval was granted under Section 33(2)(b) of the Industrial Disputes Act, 1947 to the dismissal of three workmen. The action of the employer was preceded by two chargesheets dated 26th October 1987 and 28th April 1988 by which disciplinary proceedings were convened. During the pendency of the disciplinary proceedings, a third incident took place on 15th April 1989 involving, according to the employer, the chargesheeted workman in acts of violence on the premises of the establishment. An order of dismissal was passed by the employer on 24th April 1989 by which while recording the antecedent events, the employer reserved the right to 4 lead evidence in support of the allegations of misconduct before the Tribunal. The workmen have challenged the order of the Industrial Tribunal granting approval under Section 33(2)(b). The employer has in a corresponding batch of three petitions, challenged the order of the Tribunal, in so far as the Tribunal declined to consider the evidence relied on behalf of the employer to sustain the charge in relation to the incident which took place on 15th April 1989. The Tribunal held that in so far as the last incident was concerned, since no formal chargesheet was issued by the employer, the evidence that was led in support of the charge of misconduct before the Tribunal could not be considered. The Tribunal has, however, granted the application for approval on the basis that the misconduct with reference to the two chargesheets that were issued stands established on the evidence that was adduced before the Tribunal. 2. Counsel appearing on behalf of the employer and the workmen have agreed in stating before the Court that the facts relating to the cases of three workmen are similar and that accordingly, Writ Petition 1561 of 2004 filed by the workman and Writ 5 Petition 2575 of 2004 filed by the management have been argued as the lead petitions. Counsel are agreed in stating before the Court that the outcome of those Writ Petitions would govern the other petitions as well. 3. Vinayak Shejwadkar, the Petitioner before the Court in Writ Petition 1561 of 2004 was appointed by the Khadi and Village Industries Association as a Salesman-cum-Clerk on 2nd April 1974. On 26th October 1987, a chargesheet was issued to the workman together with two other co-workmen (who are the Petitioners before the Court in this batch) alleging that these workmen had instigated the employees to participate in an illegal strike which took place on 24th October 1987. A second chargesheet was issued on 28th April 1988. The subject matter of the chargesheet related to an incident of assault which is alleged to have taken place on 18th February 1988. The chargesheet noted that initially on 22nd October 1987, the three workmen had abused and insulted the Honorary Secretary. On 24th October 1987, the workmen had proceeded on a strike at the instigation of the three workmen and an enquiry was in progress. The 6 management declared a lockout with effect from 18th December 1987. In order to attend to urgent business, a temporary office was opened at the residence of the Vice Chairman at Goregaon. On 18th February 1988 when the Vice Chairman and Chief Executive Officer, after attending the office, had to leave to attend to routine office work, a group of 35 workers led by the three workmen entered the office and by identifying by certain specified employees directed the co- workers to start assaulting them. Several employees were assaulted in the course of the incident. Thereafter, the furniture, equipment and other material in the office were destroyed and the registers and files were forcibly taken away. A group of lady workers who were stated to have been instigated to go to the residence of one of the office bearers on the First Floor, not finding him there, are alleged to have abused the family members. The Police were stated to have been called and photographs were stated to have been taken of the damage that had been caused. It is alleged that the conduct of the chargesheeted workers was in breach of the order of the Industrial Tribunal dated 11th November 1987. The workmen were accordingly chargesheeted inter alia for going on an illegal strike, commission of 7 an act subversive of discipline, riotous and disorderly behaviour on the premises of the establishment, willful damage to the property of the establishment and of assault. 4. A disciplinary enquiry in respect of the first two chargesheets commenced. On 25th April 1989, the management passed an order of dismissal founded on the incident which took place on 15th April 1989. On that day, it is alleged, certain employees had come to the emporium to meet the Honorary Secretary. The three workmen along with another colleague, Ashok Waingankar, and others are alleged to have entered the room of the Chief Executive Officer and forced the Deputy Director to leave. It is alleged that several workmen, including one Shri Surendra Khichadia were severely assaulted as a result of which, the latter suffered a bleeding injury. The Police at the Azad Maidan Police Station were informed. Shri Surendra Khichadia was, according to the order, taken by the Police for hospitalization. The aforesaid act was, according to the employer, grave and serious, in that, despite the workmen having been suspended pending an enquiry into the first two chargesheets, 8 they disrupted the normal activities of the business of the employer. The employer stated that it was satisfied that their continuance in the employment was not in the interest of the Khadi and Village Industries Association; and no purpose would be served in pursuing the disciplinary enquiry on the ground that the workmen were not cooperating. In these circumstances, considering the gravity of the misconduct, the misconduct referred to in the chargesheets, and the previous record, the workmen were informed that they were dismissed with immediate effect. The employer, however, held that while no domestic enquiry had been held, it would lead necessary evidence to prove the acts of misconduct in an application for approval under Section 33(2)(b) of the Industrial Disputes Act, 1947 which was being filed. A Demand Draft towards one month's wages was paid over to the workmen. 5. Evidence was recorded in the course of the proceedings arising out of the application for approval. The Industrial Tribunal has passed separate orders allowing the applications for approval in the case of the three workmen who are before the Court in these 9 proceedings. Before the Industrial Tribunal, the management led the evidence of Shri Surendra Khichadia, Shri Ramniklal Bhuta, Shri Damodhardas Bhuta, Shri Kantilal K. Shah and Shri Navneet Panchal in support of the allegations of misconduct. The workman, Vinayak Shejwadkar, deposed. The Tribunal came to the conclusion that there was sufficient evidence to prove the alleged misconduct in respect of the earlier two incidents dated 22nd October 1987 and 18th February 1988. From the evidence led on behalf of the management, the Tribunal held that each of the three workmen has been duly identified as having participated inter alia in an illegal act of assault on the employees of the establishment. However, the Tribunal was of the view that in so far as the incident which took place on 15th April 1989 was concerned, since no chargesheet had been issued by the employer, the evidence in support of the allegation of misconduct in respect of that incident could not be taken into consideration. Nonetheless the Tribunal held that the application for approval was liable to be allowed on the basis that the allegation of misconduct in the first two chargesheets was duly proved on evidence. 10 6. In assailing the correctness of the order passed by the Industrial Tribunal, Counsel appearing on behalf of the workmen submitted that (i) The Model Standing Orders require the holding of a disciplinary enquiry and since no enquiry was held, the mandatory provisions of Section 33(2)(b) were violated and the action was null and void; (ii) Once the consequence of a breach of the requirements of Section 33(2)(b) is that the order of dismissal is null and void, it is not open to the employer when no enquiry is held to sustain the charge of misconduct by leading evidence before the Industrial Tribunal; (iii) The Tribunal was correct in holding that the employer could not have led evidence to prove the incident which took place on 15th April 1989 for want of a chargesheet in respect of that incident; (iv) The conclusions arrived at by the Tribunal were only prima facie conclusions and evidence having been led by the employer to sustain the charge, the Tribunal should have considered whether the misconduct was proved; and (v) The case of the workmen that they were victimised was not considered by the Tribunal. 7. On the other hand, on behalf of the employer it has been 11 submitted that (i) The Tribunal has held that the charge of misconduct contained in the two chargesheets was duly established on the basis of the evidence that was adduced before the Tribunal by the employer; (ii) There was absolutely no worthwhile evidence on the part of the workmen to counter the evidence that was adduced on behalf of the employer; (iii) The Tribunal having entered a finding of fact, this Court in the exercise of the jurisdiction under Article 226 of the Constitution of India should not interfere, particularly since the grant of the application for approval under Section 33(2)(b) does not preclude the workmen from raising an industrial dispute; (iv) The Supreme Court has held that a case where no enquiry has been held stands on the same footing as one where an enquiry is found to be defective and in both the cases, it is open to the employer to sustain the charge of misconduct before the Industrial Tribunal; (v) This position is not altered by Section 33(2)(b) and the judgment of the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma,1 which dealt with the mandatory nature of the proviso to Section 33(2)(b) does not alter the position; (vi) The Tribunal was in error in not considering the evidence that was 1 AIR 2002 SC 643 12 adduced by the employer in support of the chargesheet dated 15th April 1989; the workman was clearly made aware by the order of dismissal of the nature of the allegation and the charges that were levelled. These submissions would now warrant consideration. 8. The Tribunal has allowed the application for approval under Section 33(2)(b). The Tribunal found that there was compliance with the conditions of the proviso to Section 33(2)(b) by the employer paying one month's wages and moving an application for approval. This position and the finding of the Tribunal is not disputed before the Court. Whether the Tribunal was justified in declining to consider the evidence in support of the allegation of misconduct relating to the incidents that took place on 15th April 1989 will be considered separately. The Tribunal held that the incidents of 24th October 1987 and 18th February 1988 were established and the evidence was sufficient to hold that the misconduct was established. The Tribunal has considered in great details the evidence of all witnesses who deposed on behalf of the employer. Amongst them was the evidence of Surendra Khichadia who was a victim of the incident of assault. A 13 perusal of the evidence that was brought on the record would show that the incident of assault of 18th February 1988 was established. The Tribunal had before it, the evidence of eye witnesses who specifically identified the workmen who participated in the incident. The Tribunal has evaluated the evidence of the witnesses who have deposed on behalf of the management. The evaluation of the evidence shows that the evidence of one of the witnesses, Navneet Panchal, was discarded by the Tribunal. There was, however, adequate evidence in the form of the deposition of Shri Kantilal Shah, who deposed in regard to the incident which took place on 18th February 1988. The nature of the incident that took place on 18th February 1988 would reveal that the charge of misconduct was of a serious nature and character. The finding that has been arrived at by the Tribunal on consideration of the evidence cannot be regarded as perverse so as to warrant the interference of this Court under Article 226 of the Constitution. Significantly, the only evidence that was offered on the part of the chargesheeted workman, Vinayak Shejwadkar, was to the following effect: “1. I had joined the association on the post of Salesman on 2-4-1974. I deny the charges in charge sheet 14 dated 26-10-87 and 28-4-1988. Enquiry had taken place but it was not completed. It is not informed why the enquiry could not be completed. The association had sent me a cheque. I did not accept the cheque. They had not sent me any notice. I was active member of the Union. I pray that application be dismissed.” Undoubtedly the burden of establishing the misconduct lay on the employer. The employer having discharged the burden of establishing the misconduct, the failure of the workmen to offer cogent evidence in regard to the allegation of misconduct is an important circumstance which must be taken into consideration by this Court. In my view, this Court would not be justified in reappreciating the evidence and in substituting its own conclusion for the conclusion that has been arrived at by the Tribunal as a fact finding body. 9. On behalf of the workmen, however, it is urged that no enquiry having been held in accordance with the Model Standing Orders, the Industrial Tribunal in an application under Section 33(2) (b) had no jurisdiction to permit the employer to lead evidence to sustain the charge of misconduct. In considering the merits of this submission, it must be noted that it is a settled principle of law that a 15 case where no enquiry is held is regarded as standing on the same footing as a case where the enquiry is found to be defective. In both cases, having regard to the principles of law laid down by the Supreme Court in The Workmen of M/s.Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. vs. Management,2 the management is entitled to seek an opportunity before the Industrial Tribunal to adduce evidence in support of the allegation of misconduct. In Firestone, the Supreme Court held that this right which was always recognised as existing in the employer has not been taken away by Section 11A of the Industrial Disputes Act, 1947. Counsel appearing on behalf of the Workmen submits that until the judgment of the Supreme Court in Jaipur Zila (supra), there can be no dispute about the principle that an employer who had held no enquiry at all, like an employer whose enquiry had been held to be defective, would be entitled to lead evidence in support of the charge of misconduct and the entitlement of the employer to do so would exist both in a reference under Section 10 as well as in an approval application under Section 33(2)(b) of the Industrial Disputes Act, 1947. However, it was urged that the position should be regarded as having been altered consequent upon the 2 1973(1) LLJ 278 16 judgment of the Supreme Court in Jaipur Zila. 10. This submission of the employer cannot be accepted for more than one reason. The issue which arose before the Supreme Court in Jaipur Zilla was formulated in the judgment of the Constitution Bench thus: “If the approval is not granted under Section 33(2)(b) of the Industrial Disputes Act, 1947 whether the order of dismissal becomes ineffective from the date it was passed or from the date of non-approval of the order of dismissal and whether failure to make application under Section 33 (2)(b) would not render the order of dismissal inoperative?” The Supreme Court held that the proviso to Section 33(2)(b) was mandatory. A breach of Section 33 invited punishment under Section 31 and compliance with the provisions contained in the proviso had to be duly satisfied if an order passed under Section 33(2)(b) was to be effective. In para 13 of the judgment, the Supreme Court held thus: “The proviso to Section 33(2)(b) as can be seen from its very unambiguous and clear language is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further any employer who contravenes the provisions of Section 33 invites a punishment under S.31(1) with 17 imprisonment for a term which may extent to six months or with fine which may extend to Rs.1000/- or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in other way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them are already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the 18 requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workmen.” (emphasis supplied). The objective of the proviso to Section 33(2)(b) is to protect a workman against victimization and unfair labour practices by the employer during the pendency of an industrial dispute. The requirement that the approval application should be moved before the Tribunal is intended to ensure that the discharge or dismissal of the workman is not a pretense that is resorted to by the employer as a measure of victimization. Similarly, the provision for the payment of one month's wages which is an intrinsic part of the proviso is of a mandatory character. The Supreme Court has held that an order passed dismissing or discharging the workmen may bring an end to the relationship of employer and employee but where Section 33(2) (b) applies, the order remains incomplete and inchoate as it is subject to the approval of the authority under the said provision. If an approval is not given, nothing further needs to be done by the employee as it is as if the order of discharge or dismissal was never passed. The Supreme Court, therefore, held that there was no need 19 for a specific or separate order for reinstatement. On the other hand, if the approval is granted by the authority, the employee should he be aggrieved can make a complaint under Section 33A. 11. The judgment of the Supreme Court in Jaipur Zilla, therefore, is a clear authority for the proposition that compliance with the proviso to Section 33(2)(b) is mandatory and action in breach of the conditions contained therein would render the order of discharge or dismissal null and void. In Jaipur Zila, the question as to whether an employer whose enquiry is held to be defective or, in a case where no enquiry has been held, is entitled to sustain the charge of misconduct by leading evidence before the Industrial Tribunal was not under consideration. That issue was settled by a line of precedent and reiterated in the judgment of the Firestone. The decision in Jaipur Zila does not overrule the judgment in Firestone and the judgment in Firestone continues to hold the field. The submission of Counsel appearing on behalf of the Petitioner that an employer who has held no enquiry cannot be permitted to be allowed to lead evidence in support of the charge of misconduct in the approval 20