By way of the present petition under Articles 226 and 227 of the Constitution of India, the petitioner has, inter alia, challenged the legality and validity of award dated 10.04.2000 passed in Reference (L.C.N.) No.47 of 1987 whereby Presiding Officer, Labour Court, Nadiad was pleased to reject the reference.
The facts which can be carved out from the record of the petition are as under:
That the petitioner-workman was a permanent employee of the respondent-organization. It is the case of the petitioner that he was working as permanent workman of the said organization since 1979 and at the time of the petitioner's termination he was being paid salary of Rs.1,200/-.
It appears from the record that on the allegation that the petitioner had instigated another employee of the respondent-organization one Shri Shanabhai Dhulabhai Raval, a boiler attendant, not to attend the service and on further allegation that the petitioner instigated said Shri Raval and threatened him of dire consequences, if he attempts to go for work.
It appears from the record that a show cause notice came to be issued to the petitioner-workman dated 23.11.1985 wherein it is alleged that on 11.11.1985 the petitioner actively participated in the illegal strike and at about 7:30 hrs. on 19.11.1985 the present petitioner along with one Shri Bhikhabhai L. Gurjar and other two persons went to the house of said Shri Raval and threatened him, as indicated hereinabove. That the petitioner also filed a reply to the said show cause notice. It appears from the record that an inquiry came to be initiated against the petitioner and the inquiry officer by report dated 08.07.1986 recommended to take appropriate action against the petitioner. That the petitioner was informed about the same by notice dated 28/31.07.1986 stating that on the basis of the said inquiry report, as it is not in the interest of the respondent-organization to continue the petitioner in service, the petitioner stand dismissed w.e.f. 31.07.1986 after office hours. It was also communicated in the said notice that one month notice pay, as contemplated under Section 33(2)(b) of the Industrial Disputed Act, 1947 ('the ID Act' for short) is also paid.
It appears from the record that the respondent-organization filed an application as contemplated under Section 32(2(b) of the ID Act before the Industrial Tribunal, Ahmedabad ('the Tribunal' for short), which came to be registered as Application (I.T.) No.76 of 1986 in Reference (I.T.) No.591 of 1980, which was pending before the Tribunal whrein the Tribunal vide order dated 29.01.1988 granted approval by allowing the said application. It is pertinent to note here that the petitioner did not participate in the proceedings of approval before the Tribunal.
As the approval was granted by the Tribunal, as stated above, a dispute came to be raised by the petitioner, which was referred to the competent authority and as the conciliation proceedings failed the same came to be referred to the Presiding Officer, Labour Court, Nadiad, who has jurisdiction and the same came to be registered as Reference (L.C.N.) No.47 of 1987. The petitioner-workman as well as the respondent-organization appeared before the Labour Court and by the impugned award dated 10.04.2000 Presiding Officer rejected the said reference. Being aggrieved by the same, the present petition is filed by the petitioner-workman.
This Court (Coram: D.H.Waghela, J) on 08.04.2002 passed the following order.
"RULE.
Ld. Counsel for the respondent waives service. Call for the record and proceedings of the Ref. (LCN) No.47 of 1987 disposed by the award dated 10.04.2000, from Labour Court, Nadiad. To be listed for final hearing on 30.4.2002 as suggested by the Ld. Counsel."
Heard Mr.P.H.Pathak, learned advocate for the petitioner-workman, and Mr.Deepak V. Patel, learned advocate appearing for the respondent-organization.
Mr.Pathak, learned advocate for the petitioner, has taken this Court through the impugned award as well as the factual matrix of the matter. It was submitted that the findings arrived at by the labour court are ex-facie perverse and that the labour court has committed an error on face of the record by coming to the conclusion that the strike was illegal. It was submitted that there was no reference that the respondent-employer has not made any reference for the purposes of declaration whether the strike was illegal or not. It was submitted that no evidence has been led before the labour court on the aspect that the strike was illegal and that the labour court has therefore committed an error and only on surmises come to the conclusion that the strike was illegal. It was also submitted that in fact the respondent-organization reinstated the other workers, who were issued similar show cause notices. It was further submitted that rest of the findings arrived at by the labour court are also perverse and, therefore, the petition deserves to be allowed in toto.
Per contra, Mr.Deepak V. Patel, learned advocate appearing for the respondent-organization, supported the impugned award. It was submitted that while coming to the conclusion that the petitioner deserves to be dismissed, the authorities have relied upon show cause notice (Exh.17), copy of the inquiry report (Exh.26) and termination order dated 28/31.07.1986 as well as the order of approval passed by the Tribunal (Exh.7) and a written arguments filed by the respondent before the labour court. It was submitted that the fact that the petitioner has participated in the alleged misconduct of instigating Shri Raval, threatening him and participating in illegal strike was proved beyond the doubt in the inquiry which was held against the petitioner. It was further submitted that the petitioner-workman has not objected to the procedure of the inquiry. Further relying upon the inquiry report it was submitted that the inquiry officer has threadbare considered the evidence adduced before him and has given the findings on the basis of which the order of dismissal is passed, which is approved by the Tribunal. It was therefore submitted that the petition is devoid of any merits. It was also submitted that the petitioner has participated in the illegal strike for 13 days, which has resulted into enormous loss to the respondent-organization and considering the said fact the punishment of dismissal cannot be termed as disproportionate.
Considering the rival submissions and on perusal of the impugned award it appears that the labour court has come to the conclusion that the strike was illegal and on basis of that interpreting the provisions of the Fifth Schedule of the Act and considering the provisions of Section 27 of the Act the labour court has come to the conclusion that it is proved that the petitioner has committed a grave misconduct and on basis that the strike was illegal and be pleased to reject the reference filed by the petitioner. However, Mr.Patel, learned advocate appearing for the respondent, has not been able to point out anything from the record of the petition, the basis on which the labour court has come to the conclusion that the strike was illegal. It is an admitted position that no such declaration is made by any such competent authority as provided under the Second Schedule, Clause-5 thereof, which reads as under:
"Illegality or otherwise of a strike or lock out, which provides that matter within the jurisdiction of the labour courts."
It appears from the record that in the impugned award the labour court has not given any reason for coming to the conclusion that the strike was illegal. It also appears that neither the petitioner nor the respondent has adduced any evidence to show that the strike was illegal, except as averred by Mr.Patel for the respondent that it is mentioned in the show cause notice issued to the petitioner (Exh.17). Thus, this Court is of the view that the labour court has committed an error on face of the record by coming to the conclusion that the strike was illegal was without any evidence or basis on which the conclusion is arrived at. The impugned award deserves to be quashed and the reference deserves to be remanded back to the labour court for its fresh hearing on merits.
Accordingly, the petition is allowed. Impugned award dated 10.04.2000 passed by Presiding Officer, Labour Court, Nadiad in Reference (L.C.N.) No.47 of 1997 is hereby quashed and set aside and the matter is remanded back with a direction to hear and decide the same afresh in accordance with law.
Resultantly, Reference (L.C.N.) No.47 of 1997 is restored back to file of Presiding Officer, Labour Court, Nadiad. Considering the fact that the issue is very old, Presiding Officer, Labour Court, Nadiad is directed to hear and dispose of the reference as expeditiously as possible by giving top priority. It would be open for the parties to take all contentions that are available in law. Mr.Pathak, learned advocate for the petitioner-workman, as well as Mr.Patel, learned advocate appearing for the respondent-employer, assure this Court that both parties shall cooperate in expeditious hearing of the reference.
With these observations, the petition is allowed. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.
Registry to send back the record and proceedings to the concerned court forthwith.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Top