IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5257 of 1987 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 : YES 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 Civil Judge? : NO -------------------------------------------------------------- BARODA MUNICIPAL CORPORATION Versus NARENDRA MANILAL SHAH -------------------------------------------------------------- Appearance: MR PRANAV G DESAI for Petitioner (MR PB MAJMUDAR) for Respondent No. 1 Mr NK Majmudar for Respondent No.1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 27/03/2000 CAV JUDGEMENT Laws though in themselves never so wise and pious are but a dead letter and of little force except there be a due and impartial execution of them. The weaker sections of Indian Humanity have been deprived of justice for long years, they have had no access to justice on account of their poverty, ignorance and illiteracy. They are not aware of the rights and benefits conferred upon them by the Constitution and the law. On account of their socially and economically disadvantaged position, they lack the capacity to assert their rights and they donot have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice. The concern shown by the law to the poor and disadvantaged is much greater than that shown to the rich and the well to do because the latter can on account of their dominant social and economic position and large material resources,resist aggression on their rights whereas the poor and the deprived just do not have capacity or the will to resist and fight. Every citizen of this country has a right to receive speedy, inexpensive and unpolluted justice. He is waiting with expectations. Let us respond positively. Precedents which enunciate rules of law form the foundation of administration of justice under our system. Consistency in interpretation of law alone can lead to public confidence in our judicial system. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Learned advocate Mr. Desai is appearing for the petitioner. Learned advocate Mr. NK Majmaudr is for the respondent workman (as per Court's order dated 23.9.1999). The facts of the present case, in brief, are as under: 1. The respondent workman was working as Mechanical Overseer in the water works department of the petitioner corporation from 1.2.1967 and in the year 1970, on 24th June, 1970, a chargesheet had been issued to him and alongwith chargesheet, statement of charges was also furnished to him. Following four allegations were levelled against the respondent. (1) Performing duties in negligent manner which caused loss to the department. (2) Disobedience of the orders of the superior officers. (3) After availing the casual leave, submitting of privilege leave report without mentioning the address and without getting sanctioned the leave which resulted into difficulties to the department. (4) Unauthorized act of misconduct wherein it was alleged against the respondent that he was not putting his signature in rojmel and other records which were in his possession since August, 1969 inspite of the instructions from the officers and, thereby, he was careless and negligent in performance of his duties and as a result of this, he has not obeyed the orders of the superior officers. Further allegation was to the effect that he had unauthorizedly used the proclin tube resisters wires of Sevasi Gotri 60 HP Pumping Set Roter Starter to some other work by puling it without any permission and that he had adjusted old parts by replacing catch up strips of the starter and that he has dismantled push buttons of 60 HP Starter.This act has been done without informing the superior officer and without getting permission from him. On the basis of the said allegations, the petitioner corporation had initiated detailed departmental inquiry against the respondent workman and one Mr. CJ Shah was appointed as Inquiry Officer to conduct the inquiry against the respondent who showed his unwillingness to act as such and thereafter, one Mr. RH Makati, Assistant Hydrolic Engineer was appointed as inquiry officer. The inquiry officer has submitted his report on 2.7.1971 and has concluded that the allegations which were levelled against the respondent have been found to be proved. Thereafter, the respondent was served with the second show cause notice dated 24.7.1971 to which the respondent workman had submitted his explanation on 9th August, 1971 and, thereafter, the corporation has passed order dated 23rd September, 1971 terminating the services of the respondent workman with effect from 31.10.1971. Thereafter, the respondent workman had filed the civil suit no. 1995 of 1971 in the civil court at Baroda wherein, on 29th August, 1977, the learned Joint Civil Judge,S.D., Baroda delivered judgment by holding that the civil court has no jurisdiction to try the suit of the plaintiff and the respondent workman has to take remedy under the Industrial Disputes Act, 1947 ("ID Act" for short). Accordingly, the suit was dismissed on that ground alone. Thereafter, the respondent workman had raised the industrial dispute against the petitioner corporation and has challenged the impugned order of dismissal which was ultimately referred for adjudication to the labour court, Baroda on 21st November, 1977. Said reference has been made by the State Government under section 10(1) of the ID Act. Before the labour Court, the respondent had filed his statement of claim to which, the petitioner corporation had filed written statement at Exh.9. In the statement of claim, the respondent workman has challenged the legality, validity and propriety of the departmental inquiry. Before the labour court, the respondent workman was examined on oath at Exh. 44 and the petitioner has not led any oral evidence with respect to the legality and validity of the departmental inquiry and such purshis was given at Exh. 46. The labour court, Baroda has decided the preliminary point in respect of legality and validity of the departmental inquiry on 16th April, 1980 at Exh. 48 and came to the conclusion that the departmental inquiry which was initiated against the petitioner was not legal and valid and the same was vitiated. Said order of the labour court, Baroda was challenged by the petitioner before this court by filing special civil application no. 2495 of 1980. Said petition came to be decided by the division bench of this court on 26th November, 1980. The division bench of this court has made the following observations in its order dated 26th November, 1980: "We have perused the charges which were preferred against the respondent No. 1 by the Corporation. They all charges of negligence and dereliction of duty. They do not raise any complicated question of fact or law. The respondent No.1 has no statutory or other right to be represented by a lawyer at the departmental inquiry since the charges preferred against him were not complicated necessitating the help of a lawyer, it is difficult for us to say that the departmental enquiry was vitiated on account of the fact that the respondent no. 1 was not allowed to be defended by a lawyer at the departmental inquiry. Principles of natural justice didnot required to be done. We, therefore, set aside the finding recorded by the labour court on this aspect. So far as the second finding recorded by the labour court is concerned, there is some substance in it. Respondent No. 1 does not appear to be acquainted with law, legal forms and legal procedure. In order, therefore, that he could effectively defend himself against the charges preferred against him, it was necessary for the enquiry officer to call him, it was necessary for the inquiry officer to call upon respondent No.1 to produce defence witnesses and examine them if he so desired. Inasmuch as the inquiry officer didnot do it, the inquiry held against respondent no.1 was vitiated. The finding recorded by the Labour Court in that behalf is justified, we uphold it. Now, before the labour court, the corporation will have to justify the order of dismissal on merits. SO far as the evidence led by the corporation before the enquiry officer is concerned, it cannot be wiped off from the record because we find nothing wrong with the recording of that evidence. We, therefore, direct that when the labour court makes an enquiry into this matter , the labour court shall retain that evidence on record and shall look into it as if it was led before it. However, it shall be open to respondent No. 1 to lead such evidence as he thinks fit in order to show that he was not guilty of any or all of the charges preferred against him. We would also like to make it clear that it shall be open to the labour court to call upon the corporation to produce evidence before the labour court if the labour court thinks that such evidence is necessary in addition to the evidence which is on record. In view of the fact that we are confirming the finding recorded by the labour court on the second aspect, this petition cannot succeed. Therefore, subject to the observations which we have made, the petition fails and is dismissed. Rule discharged with no order as to costs. Since this is an old dispute between the parties, we direct the labour court to decide this case as expeditiously as it can preferably within a period of two months. " The clear conclusion of the Division Bench of this Court is that in respect of second finding recorded by the labour court, the division bench of this court has found substance and on that count, the said finding that the inquiry held against the workman has been vitiated has been confirmed by the division bench of this court. However, the division bench of this court has granted permission to the petitioner corporation to justify the order of dismissal on merits and has also directed that when the labour court makes inquiry into the matter, the labour court shall look into it as it was led before it. However, it was kept open for the respondent to lead such other evidence as he thinks fit in order to show that he was not guilty of any or all of the charges levelled against him. It was also kept open that it shall be open to the labour court to call upon the corporation to produce the evidence before the labour court if the labour court thinks that such evidence is necessary in addition to the evidence which is on record before it. Ultimately, while confirming the finding of the labour court as regards second aspect, said petition filed by the petitioner corporation was dismissed by this court by directing the labour court to decide the case as expeditiously as it can preferably within two months. After the decision rendered by the division bench of this court, though the labour court has given permission to the petitioner corporation and called upon the petitioner to produce any other evidence in the matter and the respondent workman have no objection for production of such evidence, the petitioner corporation has,by Exh. 76, declared that the Gujarat High court has not passed an order to delete any evidence which is lying in the departmental inquiry and in such circumstances, it has been declared that the first party does not want to produce any further oral evidence and in that view of the matter , the labour court, after considering the said submissions, passed detailed order vide Exh. 56 and 73 and it has been held that the petitioner corporation can produce evidence and, thereafter, the respondent was examined at Exh. 92 and he has also submitted his affidavit at Exh. 88. Thereafter, the petitioner corporation has submitted purshis Exh. 97 and declared that it does not want to lead the evidence and, thereafter, the labour court has examined the merits of the matter on the basis of the record of the departmental inquiry and two oral testimonies of the respondent witness. After considering the entire evidence on record, from para 10 to 21 of its judgment, the labour court has discussed in detail the facts and evidence and has come to the conclusion that looking to the over all circumstances, out of four allegations leveled against the respondent workman, not a single charge can be said to have been proved and no negligence or carelessness on the part of the respondent workman has been proved and looking to the findings of the inquiry officer,it is found that he had not drawn the attention to the necessary and important facts by accepting the facts of Shri Makati and by closing the eyes, only in two and half page report by accepting that four allegations which have been levelled against the second party have been proved. By doing so, he has committed serious error. In para 19 of its award, the labour court has, therefore, observed that the order of dismissal is, therefore, illegal, unreasonable, unjust and cannot lie and, therefore, by cancelling the said order, it is necessary to pass an order of reinstatement of the respondent work with continuity of service which is justiciable. Ultimately, therefore, the labour court has quashed and set aside the impugned order of dismissal and has directed the petitioner corporation to reinstate the respondent workman in service with continuity of service and full back wages for the intervening period from 1.11.1971 till the date of his reinstatement. The petitioner was also directed to pay to the respondent an amount of Rs. 500/towards costs. Said award has been challenged by the petitioner corportion before this court by filing this petition. In this petition, following order was passed by this court on 30.3.88: "Mr. Majmudar states that the workman has been out of job since 1971 and the petitioner corporation has failed to reinstate him despite the order of the labour court, Vadodara dated 18th September, 1986. We, therefore, direct that the Municipal Corporation shall reinstate the respondent within fifteen days from today and deposit 50 per cent of the back wages in this court within even time.SO to 18th September, 1988 for further directions." Thereafter,on 24.9.1989, this petition was admitted by this Court and notice as to interim relief was issued and was made returnable on 25th July,1989. On 25th July,1989, interim relief as regards back wages was granted on condition that out of the amount already deposited in the court, an amount of Rs. 50,000/- is invested in long term fixed deposit in any nationalized bank so as to continue till the disposal of this petition. The balance amount of Rs. 50000/- was directed to the respondent without insisting for any security. This petition came up for hearing on 25th November, 1999. On that day, notice was directed to be issued to the respondent since Mr. PB Majmudar, learned advocate appearing for the respondent has been elevated to the bench of this Court which was made returnable within two weeks. Today,when this matter was taken up for final hearing, learned advocate Mr. Pranav G.Desai appearing for the petitioner has submitted that there are serious allegations levelled against the respondent workman and according to the records, all the four allegations were found to be proved and there are serious charges and yet the labour court has granted reinstatement which finding of the labour court is baseless and perverse. The labour court has no jurisdiction to reappreciate the evidence led in the departmental inquiry and to come to the different conclusion and/or to replace the same by its own conclusion and therefore, according to him, the labour court has committed gross error which is apparent on the fact of the record. Mr. Desai has submitted that there was admission in respect of the allegations levelled against the respondent workman which has been ignored by the labour court while passing the impugned award. He has further submitted that the petitioner has justified the dismissal and in such circumstances, it was the duty of the labour court to inflict some punishment to the respondent workman if it was of the view that the punishment of dismissal was harsh and/or disproportionate looking to the gravity of the misconduct. Mr. Desai has not submitted anything against the granting of back wages and has rightly done so in view of the fact that initially the respondent workman had approached the civil court and since his suit was dismissed by the civil court on the ground of jurisdiction, thereafter, he has raised the industrial dispute after a period of about seven years from the date of the cause of action and the labour court has considered the decision of the apex court reported in AIR 1984 SC 1829 in case of MM Saiyad versus Baroda Municipal corporation. Mr. Desai has not been able to point out anything that any evidence was produced before the labour court to establish that the respondent was gainfully employed after the dismissal and during the intervening period. Therefore,he has rightly submitted that in view of the apex court's decision in case of MM Saiyad (supra), the back wages have not been challenged and no submissions have been made by him on the aspect of back wages. Learned advocate Mr. Desi has further pointed out that the Inquiry Officer Mr. Makati has subsequently been dismissed from service and due to the negligence on the part of the respondent there was loss of items in the corporation and that fact has not been considered by the labour court. I have considered the submissions made by Mr. Desai and his endeavour before this Court to establish that in such cases, when the negligence of the workman has resulted into loss to the property of the corporation, the labour court ought not to have passed the impugned award by holding that the charges levelled against the respondent have not been proved. He has submitted that the labour court has erred in not imposing any penalty to the respondent workman. I have gone through the entire award passed by the labour court which is running from page 21 to 68 of the petition. The labour court has given well reasoned and detailed award and has taken great pain for considering each and every aspect of the matter . The labour court has discussed every evidence of the petitioner corporation against the respondent workman and after such detailed scrutiny and examination of the evidence brought before it, the labour court has come to the conclusion that none of the charges levelled against the respondent workman were found to be proved. Learned advocate Mr.Desai has read the whole award before this court and has emphasized relevant paragraph and discussion made in the award. As regards the charge of not signing the stores book from the year 1969 and explaining and replying in indisciplined and irresponsible manner, it was the contention of the workman that for not putting his signatures in the books from August, 1969, there was no mala fide intention on his part nor was it his carelessness or negligence but was his bona fide intention and with an intention that the accounts are properly maintained, he had instructed his clerk Shri Soni to maintain separate books of account and with this bona fide intention, he had not put his signatures in the books from August, 1969. The labour court has observed that there is a base and truth in the defence of the workman. For not putting signatures in the books, the respondent had submitted an explanation dated 4th December, 1969 in which he has clearly stated as to under what circumstances, he has stopped to put his signature and in the said letter, the respondent has mentioned that now, he will put his signature which are pending after verification of the books and accordingly, the respondent had started to put his signatures in the month of December,1969 and this chapter was, thereafter, closed by the Commissioner after issuing warning to the respondent by his letter which is at Exh. 15/1. The labour court has, therefore, considered this chapter to have been closed by the commissioner by issuing warning to the respondent. In paragraph 12 of the award, the labour court has further found that there is not an iota of evidence that the respondent has misappropriated any material of the stores. The labour court has also found that there was no intention on the part of the respondent to get any financial or monatory advantage by not putting his signature. The labour court has observed that on the contrary, the mal practice and misappropriations of the material has been found by the respondent which has been committed by the other employees of the corporation and for that, the respondent workman was victimized and has been made a scape goat and his superior Mr. Makati was initially suspended and subsequently dismissed by the Corporation. It was also observed by the labour court that there was no iota of evidence with respect to dishonesty against the respondent for not putting his signature in the books and the explanation submitted by the respondent was found to be reasonable and natural. After considering the said evidence, the labour court has,in terms,came to the conclusion that there is no slightest truth in the charges levelled against the respondent workman. Ultimately, after appreciating the evidence on record, the labour court has concluded that there was no evidence against the respondent workman which would prove the negligence and misconduct as alleged. As regards third charge that the respondent had proceeded on leave from 24.2.1970 to 28.2.1970 by getting sanctioned the casual leave. In connection with the said allegation and with reference to the said allegation, it has been alleged that the workman had not obtained permission for leaving the head quarters. After discussing the entire evidence on record, the labour court has come to the conclusion that it could be understood that after getting sanctioned the casual leave and by cancelling it for demanding privileged leave for further more days, there is no misconduct and the respondent had got sanctioned in advance the casual leave and in view of the circumstances, he had written post card from Jamnagar requesting to cancel the casual leave and to grant him privileged leave. After reporting the duty, the petitioner can scrutinize and sanction the request for leave and, therefore, the labour court has come to the conclusion that even the third charge has also not been found to have been proved against the respondent workman. As regards fourth charge, the labour court has come to the conclusion that there is no allegation against the respondent workman that he had removed the spare parts with mala fide intention or he has made use for his own purposes. It was observed by the labour court that, on the contrary, unused spare parts which were lying at one spot of the corporation were used by the workman and by using it, the pump set which became out of order was repaired immediately by the respondent. Thus, in view of the aforesaid findings of the labour court on the four charges levelled against the respondent workman, the labour court was of the view that the respondent was required to be reinstated in service and the impugned order of dismissal was required to be quashed and set aside. As regards back wages, since the petitioner corporation has not led any evidence to the effect that during the intervening period, the respondent workman was gainfully employed elsewhere, the labour court directed his reinstatement in service with full back wages from the date of his dismissal till the date of his