1. Heard learned advocates appearing for the parties.
2. The petitioner, first party employer, in Reference (LCV) No.984/1996 from the Court of Labour Judge, Vadodara, has approached this Court under Articles 226 and 227 of the Constitution of India, challenging the order and award dated 13.07.2001 passed by the Labour Court declaring that the order of termination of the respondent workman dated 12.05.1996 was improper, unjust and illegal and hence deserved to be quashed and set aside and accordingly it was quashed and set aside and 50% back wages were awarded Rs.1000/- towards cost.
3. The facts in brief leading to filing this petition, as could be culled out from the memo and accompanying documents, could be set out as under;
3.1 The workman, respondent hereinabove was constrained to raise industrial dispute, as his employment with the petitioner company was terminated by way of punishment of dismissal vide order dated 12.05.1996 without holding any inquiry or affording any opportunity of being heard to the workman and while terminating the services no compliance with Section 25-F of the I.D. Act were made.
3.2 The appropriate authority vide its order dated 28.10.1996 referred the dispute to the competent Court, wherein it was numbered as Reference (LCV) No.984/1996. The workman led statement of claim enlisting the grievances with regard to blatant breach on the part of the employer in terminating the services and pleaded that he be reinstated with full back wages, as the termination was wholly misconceived, illegal and deserve to be declared as such. The employer petitioner also filed its written statement. The written statement by the petitioner employer was filed on 14.06.1997. The employer Company pleaded that as the misconduct of absentism without due authority or without due sanction of the competent officer clearly admitted by the employee and hence the Company was absolved of conducting any disciplinary proceedings as in light of the admitted misconduct of absentism holding of inquiry would have been mere formality and wastage of time. The order impugned by the workman was absolutely just and proper and the same be upheld accordingly.
3.3 The Labour Court after recording elaborate findings qua patent lack of opportunity of being heard to the workman and holding that there was a blatant violation of principle of natural justice. The termination order was quashed and set aside and the workman was ordered to be reinstated with all consequential benefits, however the 50% back wages were deducted from the payment of back wages and the cost of Rs.1000/- was ordered to be awarded vide order and award dated 13.07.2001, which is subject matter of challenge before this Court at the instance of the petitioner employer by way of this petition under Articles 226 and 227 of the Constitution of India.
4. Learned advocate for the petitioner invited this Court's attention to the documents at page nos. 25 and 26 and submitted that the factum of absentism without due sanction is proved beyond doubt and, therefore, the petitioner could not have been expected to hold inquiry which was an empty formality.
5. Learned advocate for the petitioner invited this Court's attention to page no.22 and submitted that this was a charge sheet dated 06.03.1995. The said charge sheet also enumerates on various occasions. The workman had remained absent without proper sanction of leave. The charge sheet was not pursued further, as appropriate warning was administered to the workman. The workman did not improve his performance and continued in his habit of absent without leave and hence ultimately the petitioner Company was left with no choice, but to dispense with the services by way of dismissal which is brought about vide order dated 12.05.1996, which was subject matter of examination before the Labour Court.
6. Learned advocate appearing for the petitioner invited this Court's attention to the decision of the Apex Court in case of Divyesh Pandit Vs. Management, NCCBM, reported in (2005) 2 Supreme Court Cases 684 and contended that though the misconduct was clear from the record, if the Court was not satisfied about the order and its legality, then the Labour Court could not call upon the management to adduce evidence for justifying the order in question, as the Labour Court has unfettered power to call for evidence at any stage in the proceedings and pass appropriate order. The Apex Court's observation made in case of Divyesh Pandit Vs. Management, NCCBM, (supra) in paragraph nos. 8 and 9 were pressed into service in support of this submission of learned advocate for the petitioner.
7. Learned advocate for the petitioner thereafter invited this Court's attention to the decision of the Apex Court in case of Karnataka State Transport Corporation And Another Vs. S.G. Kotturappa And Another, reported in (2005) 3 Supreme Court Cases 409, in support of his contention that were the misconduct is proved on the facts, there is no need for any further hearing or inquiry. The reliance is placed upon the observation of the Apex Court made in paragraph no.24 coupled with narration in head note (C).
8. Learned advocate for the petitioner thereafter invited this Court's attention to the order passed by this Court (Coram: S.R.BRAHMBHATT, J.) in S.C.A. No.5885 of 2008, decided on 25.07.2012 and contended that the absentism is not to be countenanced and this Court has also passed appropriate order and the observations made therein are heavily relied upon.
9. Learned advocate for the petitioner thereafter submitted in alternative that in case, if the Court is not inclined to accept the submission and dismiss the petition in its totality, then at least Court may consider submission qua interfering with the order of grant of 50% back wages and reinstatement both, as in a given facts and circumstances the order of reinstatement would amount to giving premium to the erring employee for his error and misconduct. The Court may substitute the compensation in lieu of reinstatement and grant no back wages, as the workman has in terms admitted in his testimony that he was earning Rs.600/- to 800/- attending the devotees who were visiting the temples in which he was said to be giving his honorary service. The reliance was placed upon the decision of the Apex Court in case of J.K.Synthetics Ltd. Vs. K.P.Agrawal And Another, reported in (2007) 2 SCC 433.
10. Learned advocate appearing for the workman contended that the order impugned need not be interfered with in any manner, as the same is just and proper. Relying upon the decision of this Court in case of L.H.Sharma Vs. Council Of Homoeopathic System Of Medicine & Anr., reported in 2003 (4) GLR 2782 and in case of G.S.R.T.C. Vs. Sarfuding K.Saiyad, reported in 2002 (2) G.L.H. 359, contended that the impugned order is when quashed on ground of non compliance with the principle of natural justice, back wages should be followed as a natural consequence. The employer cannot be permitted to take advantage of its own wrong, as deduction of back wages would otherwise amount to encourage employer to flout the principle of natural justice requirement. In the instant case, the workman has honestly submitted that he was earning Rs.600/- to 800/- in a month, as against this, wages were said to be Rs.1750/- per month and that too he was a permanent employee. In this set of circumstances, the order of reinstatement may not be substituted by that of compensation nor can there be further deduction in the back wages amount, as the Labour Court has rightly deducted 50% and Court may simply, therefore, dismiss this petition with cost, that may be quantified appropriately looking to the glaring facts and high handedness on the part of the employer.
11. The Court is of the considered view that petition is required to be dismissed on following grounds namely;
(i) The petition is preferred under Articles 226 and 227 of the Constitution of India, but the petitioner has not indicated in any manner as to how Article 226 is invoked in these facts and circumstances of the case. The prayers made in this petition, of course refers to issuance of writ of certiorari and/or any other writ, order or direction. But that in itself would not lend any justification for invoking Article 226, as the requisite averments justifying invoking of Article 226 are conspicuously absent in the matter. The petitioner has in fact challenged the order passed by the Labour Court and there is no averment with regard to either lack of jurisdiction and/or order being patently perverse and/or any other material which would render some justification for invoking Article 226 of the Constitution of India. Hence, this Court is of the considered view that the petition though is styled to have been filed under Article 226 also, it remains to be a matter under Article 227 of the Constitution of India only, and accordingly, bearing in mind the limitations of examining the challenge to an award under Article 227 is to be under-taken and the award impugned is required to be examined.
(ii) The contention of the learned advocate for the petitioner with regard to the impugned order being decided on account of the Labour Court not calling upon the employer to adduce evidence to justify the impugned order is to say the least requires outright rejection as no employer can be permitted to say that they may pass an order in blatant violation of principle of natural justice and yet the Labour Court has to call upon them to adduce evidence which they themselves thought it fit to even prayed before the Court.
(iii) The decision cited at the bar in case of Divyesh Pandit Vs. Management, NCCBM, (supra), the same is also of no avail, as the said decision is based upon the decision of the Apex Court in case of Karnataka State Road Transport Corporation Vs. Lakshmidevamma (SMT) And Another, reported in (2001) 5 SCC 433. There the majority, in fact in unequivocal terms approved the ratio laid down by the Apex Court in case of Shambhu Nath Goyal Vs. Bank of Baroda And Others, reported in (1983) 4 SCC 491. The observations of Hon'ble two judges of the Supreme Court in paragraph nos.44 and 45 could not be construed as acknowledgment of any right of the employer to challenge the order of Labour Court in which the employer did not avail an opportunity at the earliest occasion to reserve liberty or liberty to adduce evidence in case of Labour Court not being satisfied qua compliance with the principle of natural justice, and say that the Labour Court on its own accord should have called for evidences from the management. This can never be the proposition of law which is sought to be canvassed at the bar, hence the said proposition of law has no support which requires to be rejected outrightly, as stated hereinabove.
(iv) The evidence available on the record pointed out clearly that the management chose not to hold an inquiry and when the management thus decided not to hold inquiry and pass order, the management could have chosen to avail an opportunity of seeking leave of the Court at the earliest point of time. In the present case, which as record show, was filed on 14.06.1997, even at this stage also the management chose not to make any whisper with regard to seeking any liberty for adducing evidence or justification on their part to seek any permission at subsequent stage also. Thus, in my view the ratio in case of Shambhu Nath Goyal Vs. Bank of Baroda And Others, (supra) would squarely be applicable as the management did not chose to adduce any evidence to justify the termination. The Court hasten to add here that in the instant case question would have arisen as to whether when the employer has shown no justification whatsoever in not holding inquiry, could it be even justified, it being granted any opportunity of leading evidence. Be that as it may, the Court need not detain itself merely on this ground. Suffice it to say that the decision cited at the bar does not have any applicability to the facts of the present case, as even in case of Divyesh Pandit Vs. Management, NCCBM, (supra) the Court has observed that in a peculiar facts and circumstances of that case the Labour Court could have called for evidences. Thus, it is, at the best, can be said to be reiteration of the observations of the two Hon'ble judges of the Supreme Court embedded in paragraph nos.44 and 45 with regard to non availing of opportunity at the earliest stage by the employer, would not work as fetter upon the Courts' right to call for any evidences at any time. This proposition can never be enlarged by the employer so as to clothe with it a rider to seek quashment of the order of the Labour Court, if the Labour Court has not thought it fit to call for any evidences. Thus, in view of this, the order impugned cannot be assailed as being contrary to provision of law, the same is rather required to be sustained.
(v) The decision cited at the bar in respect of deduction of back wages and modification of the order of reinstatement, in my view, are also of no avail. The peculiar facts and circumstances which have weighed with the Labour Courts are that the workman was in fact made permanent on account of his successful completion of training and when the workman requested for 15 days leave for attending his own marriage, which were not granted and when the workman thereafter had to work and when the workman's mother was ill and the certificate of illness is produced on record of the Labour Court there were extenuating circumstances to be considered appropriately and hence on this ground also, the Court is not inclined to interfere with the order. Moreover, the workman's testimony and the cross examination contains facts which in my view are sufficient to give proper evidence in respect of workman's entitlement on part of the back wages which have granted by the Labour Court.
12. Therefore, the petition being bereft of merits, deserves rejection and is accordingly rejected. Interim relief, if any, shall stand vacated. Rule is discharged. However, there shall be no order as to costs.
Pankaj
(S.R.BRAHMBHATT, J.)