1. The present petition has been filed by the petitioner-Company, challenging the order dated 18.02.2012 passed by the Industrial Tribunal, Rajkot, in the Approval Application (IT) No.2 of 1996 filed by the petitioner.
2. Rule and Notice as to interim relief was issued on 26.04.2012, making it returnable on 10.05.2012. Thereafter, as notice was not served upon the respondent-workman, the matter was adjourned. Mr.Kishor M. Paul, learned advocate has put in an appearance on behalf of the respondent-workman. The matter is placed before this Court, today for hearing on the aspect of grant of interim relief.
3. Briefly stated, the facts of the case are that the workman was an employee of the petitioner-Company. A chargesheet was issued to him on 10.03.1995, for misconduct. The gist of the charges against respondent-workman are that he had gone to the Mill Company on 10.02.1995 to receive the salary of February-1995, at around 03:25 in the afternoon. At that time, he started abusing another workman in filthy language and also slapped his face and threatened that he would beat him outside the mill premises. According to the petitioner-Company, the respondent-workman has committed such misconduct on various occasions.
4. A chargesheet was issued to the respondent- workman, to which he replied on 01.08.1995. A departmental inquiry was conducted. During the course of the inquiry, the Company appointed Shri J.C. Doshi, a Legal Practitioner, as the Inquiry Officer. Shri Ashok Mishra, a qualified Engineer and Senior Officer working in the petitioner-Company, was appointed as the Presenting Officer. The respondent-workman raised an objection by letter dated 11.08.1995 (Exh:8) that HC-NIC Page 2 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 3/16 ORDER the Inquiry Officer is not competent to act as such, as he is not an employee of the petitioner-Company, but is an outsider. The Presenting Officer argued that as per the Standing Orders of the Company, it was permissible to appoint an outsider as the Inquiry Officer. The Inquiry Officer, therefore, rejected the objection of the respondent-workman. Thereafter, the respondent-workman, by letters dated 16.08.1995 and 02.09.1995, requested the Inquiry Officer to permit Shri Chhaganbhai Modhvadia to act as a Defence Representative on behalf of the respondent-workman. The first request of the respondent-workman was turned down by the Inquiry Officer on 16.08.1995, on the ground that Shri Chhaganbhai Modhvadia was not a Representative, as per the Standing Orders of the Company. The second request of the respondent-workman was also rejected on the same ground. It appears that the respondent-workman, by letter dated 02.09.1995 (Exh:9), requested the Inquiry Officer to adjourn the inquiry till a copy of the said Standing Order is supplied to him. However, this request of the respondent-workman was not acceded to by the Inquiry Officer. The respondent-workman, thereafter, remained absent on 22.09.1995, which was the next date of the HC-NIC Page 3 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 4/16 ORDER inquiry proceedings. The proceedings were adjourned to 30.09.1995 on which date also the respondent-workman remained absent. The Inquiry Officer, therefore, proceeded with the inquiry ex-parte and passed the order of dismissal from service against the respondent-workman on 24.01.1996. The petitioner- Company, thereafter, filed an Application for Approval of the action of dismissal under the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 ("the Act" for short) before the Industrial Tribunal, Rajkot. The Industrial Tribunal held that the inquiry conducted by the petitioner-Company is defective on the grounds mentioned in the impugned order, and granted permission to the petitioner-Company to prove the charges against the respondent-workman before the Industrial Tribunal, as per one of the prayers made by the petitioner in the Approval Application. Aggrieved by the said order dated 18.02.2012 of the Tribunal, the petitioner has approached this Court by filing the present petition.
5. The learned counsel for the respective parties have addressed lengthly arguments on the aspect of grant of interim relief.
HC-NIC Page 4 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 5/16 ORDER 6. Mr.Shirish Joshi, learned advocate for the petitioner has submitted that the Tribunal has
proceeded on an erroneous premise, inasmuch as it has presumed that the relevant Standing Order was not before the Inquiry Officer at the time when the orders rejecting the applications of the respondent-workman for permission to appoint Shri Chhaganbhai Modhvadia as Defence Representative, were passed. It is submitted that the relevant Standing Order was there on file before the Inquiry Officer, therefore, the ground on which the Tribunal has rendered a finding that the inquiry has not been conducted in accordance with law, is incorrect.
7. It is further submitted that the charges against the respondent-workman are serious in nature and his conduct is such that it is undesirable to permit him to enter the premises of the petitioner-Company, in future. It is contended that the petitioner-Company is ready and willing to pay wages to the respondent- workman without reappointing him as his conduct and presence is not conducive to the other workers working in the factory premises.
HC-NIC Page 5 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 6/16 ORDER 8. It is next submitted that the inquiry was conducted in accordance with law, and as per the
principles of natural justice. Ample opportunity was provided to the respondent-workman during the inquiry, therefore, the finding recorded by the Tribunal that the inquiry has been conducted in violation of principles of natural justice, is baseless.
9. It is further submitted that the conduct of the respondent-workman ought to be kept in mind. The Tribunal has ignored the aspect that the respondent- workman remained absent during the inquiry. An opportunity was granted to the respondent-workman to remain present, but he did not avail of it. Had he presented himself, the documents relied upon by the petitioner-Company would have been supplied to him. The documents of the inquiry have not been given to the respondent-workman due to his own absence.
10. It is then submitted on behalf of the petitioner that one of the aspects that has weighed with the Tribunal is that the Inquiry Officer was a Trained Legal Practitioner and the Presenting Officer was also HC-NIC Page 6 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 7/16 ORDER highly qualified, whereas the respondent-workman was neither highly educated nor legally trained, thereby creating an imbalance. It is submitted that this finding is erroneous as the respondent-workman is a member of the Union and is competent enough to defend himself. It is further submitted that Shri Chhaganbhai Modhvadia, whom the respondent-workman wanted to engage as a Defence Representative on his behalf, is not a Representative in terms of the Standing Order, therefore, permission to engage him was rightly not granted. It is contended that the relevant Standing Order provides that an outsider can be engaged as an Inquiry Officer, therefore, the objection of the respondent-workman regarding the competence of the Officer are not sustainable.
11. It is further contended that the overall findings of the Tribunal in the impugned order are erroneous and not supported by any material on record, therefore, the impugned order deserves to be stayed. It is submitted that if interim relief is not granted to the petitioner, the petition would become infructuous and the petitioner would have to re-engage the respondent-workman, whose presence is highly HC-NIC Page 7 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 8/16 ORDER undesirable in the premises of the factory.
12. In support of the above submissions, reliance has been placed upon the following judgments:
(I) Biecco Lawrie Ltd. & another Vs. State of West Bengal & another reported in AIR 2010 SC 142;
(II) Joshi B.P. Vs. Gujarat Electricity Board and another reported in 2004-IV-LLJ (Suppl)- NOC-165;
13. Per contra, Mr.Kishor M. Paul, learned advocate for the respondent-workman has submitted that the manner in which the inquiry has been conducted itself shows that there is a violation of the principles of natural justice, as has rightly been held by the Tribunal. It is submitted that the Tribunal has come to a correct conclusion that the copy of the relevant Standing Order was not before the Inquiry Officer at the time when the application of the petitioner, challenging competence of the Inquiry Officer, was rejected. Similarly, the Standing Order was not placed on record at the time when the application of the respondent-workman for engaging Shri Chhaganbhai HC-NIC Page 8 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 9/16 ORDER Modhvadia as a Defence Representative was rejected.
14. It is further submitted that the respondent- workman requested the Inquiry Officer to adjourn the proceedings of the inquiry, till such time as a copy of the Standing Order is supplied to him, but this request was also turned down and the inquiry proceedings were conducted ex-parte. The respondent- workman did not appear as the Standing Order was not supplied to him, but instead of supplying the same, the inquiry was conducted ex-parte.
15. Regarding the submissions made by the learned Senior Advocate for the petitioner that the petitioner-Company is ready to pay the salary of the respondent-workman, if he does not enter into the factory premises, it is submitted by the learned advocate for the respondent-workman that such a submission reveals the biased attitude of the petitioner. The respondent-workman would never like to receive idle wages and would like to perform his duties in order to earn a wage.
16. It is further submitted by Mr.Paul that the HC-NIC Page 9 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 10/16 ORDER
manner in which the inquiry has been conducted, is clear from the fact that the objection regarding the appointment of the Inquiry Officer has been rejected by the very same Inquiry Officer, on the basis of the Standing Order, which has not seen the light of day. It is contended that, on the other hand, the Inquiry Officer has quoted the same Standing Order while rejecting the application of the respondent-workman to engage Shri Chhaganbhai Modhvadia as a Defence Representative. It is emphatically submitted that the Tribunal has rightly come to a conclusion on such facts and circumstances of the case that in the absence of the relevant Standing Order, there is a violation of the principles of natural justice.
17. It is further submitted on behalf of the respondent-workman that the documents relied upon by the Inquiry Officer, were not supplied to the respondent-workman along with the chargesheet as per settled law, but were supplied in the midst of the inquiry. It is contended that the respondent-workman has been clearly prejudiced by the inquiry, as, on one hand, the Inquiry Officer is a Legal Practitioner and the Presenting Officer is an Officer of high rank, HC-NIC Page 10 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 11/16 ORDER being a qualified Engineer in the petitioner-Company, whereas the respondent has only passed the 6th Standard. It is emphasized by the learned advocate for the respondent-workman that the respondent-workman was in a disadvantageous position from the very beginning, and was not even allowed to engage the Defence Representative Office of his choice which amounts to an unfair labour practice, as rightly held by the Tribunal.
18. Lastly, it is contended that the petitioner has itself made a prayer in the Approval Application that if, for any reason, the Tribunal comes to a conclusion that the inquiry is defective, an opportunity may be granted to it to prove the charges before the Tribunal. It is submitted that while passing the impugned order, this prayer of the petitioner has been granted by the Tribunal. It is not as though the Tribunal has outright rejected the Application for Approval. Instead, it has granted the petitioner an opportunity to prove the charges before the Tribunal as prayed for by the petitioner. It is contended that the petitioner cannot be said to be prejudiced by in any manner by the impugned order of the Tribunal, therefore, interim HC-NIC Page 11 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 12/16 ORDER relief may not be granted.
19. I have heard the learned counsel for the respective parties, considered the submissions advanced at the Bar and perused the material on record.
20. At the outset, it is required to be noticed that this Court is dealing with the matter only from the perspective of grant of interim relief, therefore, the submissions made by the learned counsel for the respective parties are being dealt with in that context only.
21. The first aspect that emerges from perusal of the material on record is that in the Application for Approval filed by the petitioner-Company, a specific prayer has been made to the effect that if, for any reason, the Tribunal comes to a conclusion that the inquiry suffers from any defect, an opportunity may be granted to the petitioner to prove the charges against the respondent-workman before the Tribunal. While deciding the Approval Application of the petitioner by the impugned order, the Tribunal has granted this HC-NIC Page 12 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 13/16 ORDER prayer made by the petitioner. The petitioner has been afforded an opportunity to prove the charges against the respondent-workman before the Tribunal. Having prayed for the above relief in the Approval Application, which has been granted by the Tribunal, it cannot be understood how the petitioner is prejudiced by the impugned order. The petitioner cannot approbate and reprobate at the same time.
22. It, prima-facie, appears that the relevant Standing Order on the basis of which objection of the respondent-workman to the appointment of the Inquiry Officer on the ground of being an outsider was rejected, was not on record. The learned advocate for the petitioner has submitted that the said Standing Order was on the file of the Inquiry Officer. There appears to be no material on record in support of this submission. The application of the respondent-workman to engage a Defence Representative, was rejected on the basis of the very same Standing Order, which is not on record. The contents of the said order are also not on record. Another more serious aspect is that the objection of the respondent-workman to the appointment of the Inquiry Officer has been rejected by the very HC-NIC Page 13 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 14/16 ORDER same Inquiry Officer, himself. This has led the Tribunal to the conclusion that the principles of natural justice have been violated. At this stage, suffice to say that, prima-facie no error appears to have been committed by the Tribunal in reaching this conclusion.
23. Insofar as the aspect that the Inquiry Officer is a Legal Practitioner and the Presenting Officer is a highly qualified Engineer and a Senior Officer in the Company is concerned, the learned advocate for the petitioner has submitted that in the deposition of the Manager of the Company to the Examination-in- Chief, on affidavit it is stated that the Presenting Officer was a highly qualified person, but it is not stated that he is legally trained. Reliance has been placed on behalf of the petitioner in Biecco Lawrie Ltd. (supra), wherein it has been held that the management was represented by a person who was a commerce graduate and had passed a diploma course in social welfare, but was not a lawyer, or legally trained person would not amount to a violation of the principles of natural justice.
HC-NIC Page 14 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 15/16 ORDER
24. At this stage, the Court does not consider it appropriate to go into the findings rendered by the Labour Court, as the matter is being heard only for grant, or otherwise, of interim relief. Whether this judgment would be applicable on the facts and circumstances of the present case would require deeper consideration, which can be given at the stage of final hearing.
25. The facts of the case in the said judgment do not appear to be similar to those in the present petition. However, this aspect can be thoroughly gone into at a later stage.
26. For the reasons stated hereinabove and as the Tribunal has granted the prayer of the petitioner in the Approval Application, to permit it to prove the charges against the respondent-workman before the Tribunal, in the view of this Court, no grounds are made out for the grant of interim relief.
27. It may be kept in mind that the observations made by this Court in this order are based on a prima-facie and tentative appreciation of the material on record.
HC-NIC Page 15 of 16 Created On Wed Jul 06 03:02:20 IST 2016 SCA/6047/2012 16/16 ORDER
As the matter requires deeper consideration, and as interim relief has not been granted, the petition may be listed for final hearing on 01.10.2012.
(Smt. Abhilasha Kumari, J.) rakesh/ HC-NIC Page 16 of 16 Created On Wed Jul 06 03:02:20 IST 2016