1. The employer in Special Civil Application No. 4906 of 2008 as well as the workman in Special Civil Application No. 6473 of 2008 have challenged the order in award passed by the Labour Court, Vadodara, in Reference (LCV) No.1200 of 1994, dated 29/10/2007, for respective reasons, namely order of reinstatement with 40% backwages is challenged by the employer and deduction of 60% backwages is challenged by the workman.
2. Facts in brief leading to filing these petitions deserve to be set out as under.
The workman was placed under suspension on 10/2/1994 and an inquiry was ordered and chargesheet came to be issued on 16/2/1994, inter alia alleging that the workman was guilty of committing serious misconduct of hatching conspiracy and inciting fellow workman and as a result whereof fellow workman assaulted his superior who was required to be hospitalized on account of grievous hurt for which the police complaint was lodged against the one who was assaulted, wherein the workman was not named as one of the conspirator, but the assault was viewed to be result of conspiracy hatched by the present workman who was perceived to be an instrumentality in the assault suffered by the victim called Dilbag Singh who had received assault injury on account of he being assaulted by Trilok Singh, the fellow workman. On this facts chargesheet proceeded and ultimately it culminated into punishment of dismissal from service which was subject matter of dispute which came to be referred to competent Court wherein it was registered as (LCV) No. 1200/1994, and after recording its findings came to the conclusion that one of the witnesses in the inquiry deposed that the workman was indulged in selling liquor and other merchandise on the premises of the factory which was objected by security inspector and victim Dilbag Singh, hence he must have instigated Trilok Singh the one who assaulted for making assault upon him and therefore the order came to be passed by the Labour Court awarding compensation of Rs. One lakh maintaining the termination order vide its order in award dated 14/5/1999, which was assailed by the workman by preferring Special Civil Application No.6812 of 1999, which came to be disposed of by this Court on 2/7/2007. The order whereof is reproduced as under:-
“ The facts of the present case in a nutshell are that a chargesheet was issued to the present petitioner, the petitioner filed his reply and an inquiry was conducted and after second show cause notice, the petitioner was terminated from services. The petitioner filed a dispute before the learned Labour Court; the parties led evidence. The learned Labour Court held that from the statements of the witnesses of the Establishment, it would clearly appear that the present petitioner was engaged in selling of illicit liquor and such conduct was improper and contrary to the service conditions. However, the learned Labour Court held that for such an act of the petitioner, his removal from the services was a harsh punishment. Instead of maintaining the punishment of removal, the Court directed that dismissal would be proper, but, the respondent shall pay a sum of Rs.1 Lakh to the petitioner as compensation. Being aggrieved by the said award, the petitioner is before this Court.
2. Shri Pandya, learned Counsel for the petitioner, submitted that if the Court was of the opinion that removal was a harsh punishment, then, the Court below could not maintain the order of termination, nor could direct award of Rs.1 lakh as compensation. He submits that present is a case for reinstatement with full backwages.
3. The findings recorded by the learned Labour Court are that the present petitioner was selling illicit liquor and was creating a bad influence everywhere. The Court, though recorded everything against the interest of the petitioner, but, held that termination would be improper. At the same time, the learned Labour Court maintained the termination and directed award of Rs.1 Lakh as compensation.
4. If the findings of the Court were that the punishment was shockingly disproportionate, then, the Court could not maintain the order of termination nor could direct payment of Rs.1 Lakh towards compensation. Once the Court holds that the punishment was shockingly disproportionate, then, it cannot show exit to the employee nor can direct that termination be maintained and instead of any other relief, compensation be paid.
5. In the opinion of this court, the learned Labour Court below was confused in recording the findings and awarding the punishment in favour of the present petitioner. Maintaining all the findings relating to misconduct of the present petitioner, I set aside the observations made by the learned Labour Court that the punishment was disproportionate, therefore, the Court was entitled to interfere in the matter. I remand the matter back to the learned Labour Court with a direction to rehear the parties on the question that whether the punishment awarded to the petitioner was shockingly disproportionate to the wrong committed by him and if yes, whether he should be reinstated with full or partial backwages or no backwages or should he be paid compensation instead of reinstatement or in the alternative, whether in view of the misconduct exhibited by him in selling illicit liquor, should the Court refuse to grant him any relief.
6. The petitioner shall appear before the learned Labour Court on 7th August, 2007 and shall file a copy of this order enabling the learned Labour Court to know as to what it is required to do. The learned Labour Court shall issue notice to the other side and, after seeking the service report, shall proceed with the matter. It is, however, made clear that the learned Labour Court shall not be entitled to record further evidence. The duty of the learned Labour Court shall be to rehear the parties on the question that whether the punishment of removal is shockingly disproportionate and to what relief, the petitioner is entitled to.
7. If the petitioner has received the sum of Rs.1 lakh, which was awarded to him as compensation, then, the same shall be deposited by him with the learned Labour Court on the date of appearance or within a further period of fifteen days from his appearance before the learned Labour Court. If the petitioner fails to redeposit the money, then, his reference shall stand dismissed. A copy of this order be sent to the concerned Labour Court from the Court's side.
8. In the result, the petition is allowed. Rule is made absolute. No costs.”
3. Thus, this Court remanded the matter back with an observation that the parties be heard without permitting to lead further evidence in support of their respective cases. On remand Labour Court extensively heard the parties and came to specific conclusion that there exists no chargesheet qua the charge which charge is of selling illicit liquor or merchandise in the premises of factory and accordingly held that the order of reinstatement is required to be made, however instead of granting full backwages it was thought fit to grant 40% backwages and accordingly passed order in award dated 29/10/2007 which was subject matter of challenge in this Court by both the sides, i.e. the employer against granting of reinstatement with 40% backwages in SCA No.4906 of 2008, and so far as the workman is concerned, SCA No. 6473 of 2008 is filed for full backwages with reinstatement.
4. Learned advocate for the employer in SCA No.4906 of 2008 contended that the findings of Labour Court qua workman indulging in selling of illicit liquor and other merchandise on the premises of the factory cannot be overlooked and the Labour Court therefore on remand could not have brushed aside the said evidence which fact in fact weighed with the Labour Court on earlier occasion while awarding compensation of Rs. One lakh and maintained the termination. The order of termination was just and proper and it was befitting the conduct evinced on account of the evidences available on record. Labour Court therefore patently erred and exercised jurisdiction which was not vested in it for ordering reinstatement looking to the conduct of the workman and the evidences on record the Labour Court has no justification whatsoever for passing order of reinstatement with 40% backwages. The order in award impugned therefore is required to be quashed and set aside.
5. Learned advocate for the employer-petitioner has further contended that the Labour Court ought not to have over stepped its jurisdiction and pass order on three grounds, viz. (1) the FIR does not include name of the petitioner, (2) that, selling of illicit liquor and merchandise was not charged, (3) that Trilok Singh, co-worker was released on bail and surety was offered by the present workman cannot be indicative of his being conspirator. That these three grounds were not available to the Labour Court in view of the direction passed by this Court dated 2/7/2007 in Special Civil Application No. 6812 of 1999, as this Court clearly de-alienated jurisdiction of the Labour Court in examining the issues on remand.
6. Learned advocates for respondent workman have contended that the order passed by his Court dated 2/7/2007 if is perused closely would clearly show that the parties were not entitled to lead further evidence in support of their respective case, but Labour Court was never restrained from examining the material on record and come to its own conclusion. If one looks at the order in award it would become absolutely clear to one that this Court while remanding the matter did not place any fetters upon jurisdiction of the Labour Court except that of not permitting parties to lead further evidence as the incident had occurred way back in year 1994 and remand was made in the year 2007.
7. Learned advocates for the respondent workman further contended that the evidence on record would indicate that the chargesheet itself was unwarranted as in absent of any material whatsoever the authorities i.e. employer could not have subjected the workman to serious allegations and inflicted even punishment of dismissal which is wholly unwarranted and therefore these aspects were correctly appreciated by the Labour Court and award & order therefore may not be interfered with qua reinstatement and Court may not therefore entertain the petition of the employer.
8. Learned advocates for the workman further contended that the three grounds urged on behalf of the advocate of the employer is said to have weighed with the Labour Court where the grounds which cannot be said to be non existent and if these three grounds are taken to be existing, then those three grounds are sufficient for bringing about an order of reinstatement which cannot be said to be in any way untenable in eye of law, as the employer has no right to terminate the services without holding inquiry. In case if there was some substance in the deposition of witness qua allegation of selling illicit liquor on factory premises then nothing prevented the employer from issuing substantive chargesheet thereon and after holding inquiry and after proving the charge appropriate punishment could have been inflicted. Instead thereof, when such charge was not forming part of chargesheet which ultimately culminated into termination order then the same cannot be sustained.
9. Learned advocates for the workman did not submit any cogent reason for workman's entitlement for complete backwages and submitted that the Court may pass appropriate order qua workmen's petition demanding 100% backwages.
10. This Court is of the considered view that both the petitions are required to be dismissed for following reasons, namely:-
1) This Court is unable to accept the submission made by learned advocate on behalf of the employer that Labour Court was not required to go into the provision of evidences in light of the factors placed by this Court in its order dated 2/7/2007 in Special Civil Application No. 6812 of 1999. This submission is not tenable in light of the fact that the Court did not put any such fetters except the fetter of not leading further evidence and this Court could not have put any fetter or else it would have amounted to guiding the Labour Court in its discretion which this Court would not do even remanding matter. Even factually also if one peruses operative part of the order which is reproduced herein above, one would clearly agree with the fact that their existed no such fetters as sought to be canvassed on behalf of employer other than what is mentioned. Therefore this Court is of the view that Labour Court on remand did have jurisdiction to appreciate the evidences and pass appropriate order, as the earlier order also contain that the termination order could not have been passed on account of deposition of a witness who for the first time makes allegation qua selling of illicit liquor.
2) Assuming, without holding it, for the sake of examining that the proportionality of punishment was ordered to be looked into by Labour Court in view of the conduct of the workman, which were referred to by this Court in its order, then also I am of the clear opinion that when the charge itself did not exist and when in operative part this Court permitted Labour Court to examine the material on record for even deciding proportionality of the order which would have worked as greater injustice to the workman if the Court has not examined of the aspects including that of non existence of chargesheet or non existence of inquiry qua charge of selling illicit liquor and merchandise on factory premises.
3) This Court is of the considered view that learned advocates for the workman rather agreed in their statement that even the chargesheet in the first instance on the allegation of conspiracy could not have been warranted as there existed no material whatsoever before the authority for issuing chargesheet and the factum is admittedly not said to have been assailed by the present workman. The victim has not named the workman in any manner. The workman is not said to have taken active participation in the process of assault nor has there been any material adduced in form of statement even before police authority remotely indicating an incident of enticing co-workman i.e. Trilok Singh, to assault Dilbag Singh. These factors are conspicuously lacking and therefore, in my view the chargesheet itself was untenable as it was based upon participation of witness victim who has not come forward to produce any evidence qua delinquent workman being indulged in selling of illicit liquor or that he ever objected to such act and if so, that objection has also not been brought on record in any manner. The probability based upon participation of the victim cannot be subject matter of issuance of chargesheet which has culminated into economic death of workman as penalty of dismissal came to be imposed. Therefore in my view the chargesheet was wholly unwarranted.
11. The Labour Court has given reasoning qua deducting 60% of backwages and in my view the deduction of 60% backwages also needs no interference in view of the peculiar facts & circumstances of the case and passage of time elapsed. Therefore both the petitions being bereft of merits deserve dismissal and are accordingly dismissed. Rule discharged in Special Civil Application No. 4906 of 2008 and notice discharged in Special Civil Application No. 6473 of 2008. Interim relief, if any granted, in either of the petition shall stand vacated. No costs.
[ S.R. BRAHMBHATT, J ] /vgn