1. Heard the learned advocates for the parties. The petitioner exemployee of respondent no.1 Corporation has approached this Court by way of this petition under Article 226 of the Constitution of India, with following prayers.
(A) Your Lordships may be pleased to issue a writ in the nature of mandamus or any appropriate writ order or directions and to be pleased to quash and set aside the Order dated 13/03/2009 only with the reference to the part which declares the petitioner removed from the services in the end of the office hours on 13/03/2009 and also be pleased to quash and set aside the Order passed by Standing Committee dated 13/08/2010.
(B) Your Lordships may be pleased to direct the respondent Corporation to reinstate the petitioner properly with full back wages with continuity in service with all other benefits as a result of granting PrayerA above.
(C) Pending admission and final disposal of this Petition Your Lordships may be pleased to stay the implementation and operation of removal part of the Order dated 13/03/2009 and direct the Respondent Corporation to reinstate the Petitioner in the Services with immediate effect subject to rights and contentions of both the sides being kept open as an effective measure of interim relief. In the alternate if the respondent Corporation is unwilling they may be directed to pay to the Petitioner every month based on wages as payable in March2009 and the Corporation may continue to pay the same wages every month till final decision in the matter.
(D) Your Lordships may be pleased to grant cost of this Petition.
(E) Your Lordships may be pleased to grant any other and further relief as may be deemed fit in the interest of Justice.
2. Thus, essentially this petition contains challenge of two orders namely the order dated 13th March, 2009 passed by the respondent no.2, in purported exercise of powers conferred upon him under Section56 (2) (G) of the Bombay Provincial Municipal Corporation Act (hereinafter referred to as the “B.P.M.C. Act” for the sake of brevity) removing the petitioner from service by way of punishment based upon the earlier inquiry, which had culminated into the order of punishment of removal dated 29/09/2005, which was held to be illegal action and where under in complaint that is I.T. No.35/2006, the competent Industrial Court had ordered reinstatement with all the consequential benefits vide judgment and order dated 09/01/2009. Thus, the order dated 13/03/2009 was an order purported to have been passed in compliance with the direction issued by the Industrial Tribunal in complaint I.T. No.35/2006, as well as the order of removal of the petitioner by treating him to be on the job and acting upon the earlier inquiry and proceedings on the premise that the requirement of obtaining any approval as originally pleaded on account of pendency of any reference being not there, the removal could be brought about by the impugned order. Thus, in one single order two goals have been achieved, which are contradictory opposite to each other. This order was subjected to be considered by the appellate authority i.e. Standing Committee under the provision of B.P.M.C. Act, which also after taking into consideration the remarks forwarded by the Municipal Commissioner accord to its approval to the order dated 13/03/2009. The said approval was dated 13/08/2010, which came to be communicated to the petitioner vide order dated 28/08/2010. Hence, the petitioner preferred this petition under Article 226 of the Constitution of India.
3. The facts in brief with little more elaboration is required to be adverted in order to appreciate the developments of the events leading to filing of this petition.
4. The petitioner received chargesheet dated 07/08/1999 inter alia alleging that the petitioner represented some workmen, who were not in the employment of the Corporation, in their cases before the Labour Court/Industrial Court and thus, committed breach of Rule15 of Gujarat Civil Service (Conduct) Rule, 1971. The said chargesheet entailed detail inquiry and disciplinary proceedings, wherein parties laid their evidences and those proceedings were also subject matter of litigation on account of patent illegality in those proceedings, which were ultimately removed and the inquiry proceedings followed by show cause notice inviting the reply of the petitioner on the punishment aspect and these proceedings thus, culminated into passing of order of punishment as the explanation was found to be untenable and unacceptable vide order dated 29/09/2005. This order was passed without following the provision of Section33 of the Industrial Disputes Act, 1947. Hence, the complaint in the form of I.T. No.35/06 came to be filed inter alia alleging that the reference I.T. No.129 of 1999 was pending and during the course of hearing of the complaint, two more reference's pendency were discussed and one more reference, which was
at the behest of the petitioner challenging this very order came for consideration before the Industrial Tribunal. The Industrial Tribunal did not pass any order of interim relief to the petitionerworkman. Hence, he was constrained to prefer S.C.A. No.19178 of 2007, which ultimately disposed of on 21/07/2008 by ordering that the petitioner shall be paid 75% of the wages during the pendency of the hearing of the complaint. Accordingly, the workman received 75% wages during the pendency. The Industrial Tribunal recorded its findings qua illegality in action of the removal of the petitioner as it was not resorted to in accordance with the provision of law established in Section33 (2) (B) and as a result thereof ordered reinstatement with all the consequential benefits in light of the decision of Apex Court in the case of Jaipur Zila Sahakari bhoomi Vikas Bank Ltd. V/s. Ram Gopal Sharma & Ors. Reported in (2002) Vol.2, SCCC 244. This order was made by the tribunal on 09/01/2009. The workman, thus, was required to be reinstated as per the direction issued. Instead receiving any such order of reinstatement as per the say of the workman in the petition, he received on 19/03/2009 an order dated 13/03/2009 purported to have been passed reinstating the petitioner in light of the direction issued by the Industrial Tribunal under its order and judgment dated 09/01/2009 and in the very same order after recording direction to the Corporation Office to pay all the dues admissible to the petitioner on account of the direction of the Industrial Tribunal, as ordered in its order dated 09/01/2009, recorded satisfaction qua nonacceptability of the petitioner's explanation on the show cause notice dated 21/03/2005 and the petitioner was reinstated and removed after the office hours in exercise of powers under Section56 (2) (G) of the B.P.M.C. Act. He was to be paid with this order the admissible dues under the intimation to the Commissioner – respondent no.2. This order was considered by the Standing Committee, which is appellate authority as per the provision of B.P.M.C. Act. Over
the Commissioner's order of such nature, Standing Committee in its meeting held on 13/08/2010, passed a resolution after taking into consideration the remarks tendered by the Commissioner to approve the said removal order, which resolution and decision was communicated to the petitioner vide communication dated 21st August, 2010. Being aggrieved and dissatisfied with these two orders, the petitioner has preferred this petition under Article 226 of the Constitution of India.
5. The learned advocate for the petitioner has placed on record the documents, which were forming part of the record of the complaint I.T. No.35/2006, which ultimately culminated into order in favour of the petitioner dated 09/01/2009 and contended that the chargesheet ought not to have been issued as the issuance of chargesheet for the activities alleged and projected to be misconduct was contrary to the provision of Section36 of the I.D.Act, which in terms provides that the office bearer of the union is having entitlement to appear on behalf of the members of the union without any further qualification qua the union being industry or the union being region or the union being of that particular employer's industry.
6. The learned advocate for the petitioner, thereafter contended that the documentary evidences produced during the inquiry were sufficient to persuade the Court to hold that the findings of the inquiry officer were patently erroneous and no such reasonable man would have arrived at on account of evidence available on record. The petitioner applied to the tribunal for seeking direction to the Corporation for leading evidence in this behalf, which application remained without any adjudication. The applicant's raising dispute challenging the order dated 13/08/2010 and its culmination into a reference before the Court being reference no.169 of 2006 before labour Court, Vadodara would also be not rendered the complaint being incompetent in any manner the provision of I.D. Act do not debar such raising of dispute and assuming for the sake of argument that such proceedings are not patently to be pursued then in absence of any specific objection in this behalf, the pendency and/or otherwise of that reference would be of no consequence.
7. The learned advocate for the petitioner, thereafter contended that the order of removal dated 13/08/2010 was on account of aversion developed by the concerned officers against the petitioner and therefore, the same order was nothing but an act of victimization so as to dispense with the services of the petitioner without there being any substantial material for proving the charge of breach of Rule15 of Gujarat Civil Service (Conduct) Rules.
8. The learned advocate for the petitioner further contended that the tribunal's observation qua Corporation chosen not to produce any documentary evidence in support of their stand or in defence may not be permitted to be construed as nonadjudication on the points of validity and veracity and justification and otherwise of inquiry proceedings, as otherwise. It would be contrary to solitary observation and safeguards pronounced by the Apex Court. In this behalf in the case of Jaipur Zila (Supra) specially in paragraph nos.14, 15 and 16 the best available material is withheld cannot be permitted to be used as designed by the employer at a subsequent stage. The best opportunity available or rather earliest opportunity available to Corporation to justify its stand or to justify its defence being not availed by the Corporation. The Corporation was not permitted to revive the same atleast without affording any further opportunity to the petitioner and hence on this ground also the order impugned is per say illegal, arbitrary and therefore, the same is required to be quashed and set aside.
8.1 The relevant observation of the Apex Court in Jaipur Zila (Supra) would leave no room for the employer to even contain contrary to the provision of law for sustaining and/or substantiating the order in question as admittedly the order was brought about without following due procedure of law, and where references were pending. The respondentcorporation did not avail the opportunity of leading evidence to justify their action independent of all the breach of the provision of Section33 (2) (B). The nonavailing of an opportunity to justify their termination order in the course of the hearing and adjudication of the complaint would not permit the Corporation to revive the inquiry proceedings and act thereupon when the resultant order of removal dated 13/08/2010 was held to be wholly illegal. The legality declared by the Court of competent jurisdiction explained with the direction of reinstatement ought to have been appreciated with respect and complied by the public authority like Corporation and Corporation could not have taken law in their hands and rather in utter disregard of the proceedings and pronouncement of law turned its blind eye to all these facts and acted with singular motive of removing the petitioner from the employment so as to render employee unemployed and keep litigating despite the valid order and direction in his favour.
9. The order dated 13/03/2009 could not have been passed in the first instance, as the earlier action of holding the inquiry without affording an opportunity of hearing the petitioner and receiving of the punishment, all were held to be illegal and the order of reinstatement was made when it was not complied with. The authority could not have been justified in passing the order as if there is notional reinstatement on the paper and on the very same paper there is the order revived the earlier disciplinary proceedings and treated those proceedings to be over and complete and even rejection order and their original termination order was treated to be nonest and fresh order would have been passed, which was infact a blatant attempt to denying the benefits of litigation to the petitioner and a unanimous declaration that in what view the Court's orders are being held by the Corporation that is instrumentality of the State, which is saddled with the primary duty of taking care of the interest of the public including petitioner as it's employee, leave aside it being model employer. It has proved to be an employer who would not be permitted to take law in hands has evinced such disregard to the provision of law. The learned advocate for the petitioner invited this Court's attention to his submission summarized in GroundN of the petition, which are reproduced herein below.
“(N) That, the respondent Corporation has acted in such a way that the law has been rendered ineffective or meaningless with reference to Section33 and 33(A) of the Industrial Disputes Act1947. The purpose of enacting the said section is to give protection to the worker against the malafide and unlawful actions of the employers. The law makers wanted to save the time of the suffering workers. Unfortunately, the weighing which the Corporation has acted goes out to show that they don't respect the rule of law and even if the res judicata and estoppals applies against them with reference to the award in Complaint No.35/06, they have mechanically and arbitrarily thrown out the petitioner from the employment. This kind of heartless, headless and arbitrary action contrary to the law and fairness deserves to be quashed and set aside in the interest of justice.”
9.1 Thus, he submitted that the impugned order is illegal and is required to be quashed and set aside. The learned advocate for the petitioner invited Court's attention to the documents produced in the compilation from page no.31 to 36 and contended that this will prove as to how the order of dismissal originally passed and how it was represented by the respondent no.2 as a consistent design & endevour on their part to eliminate the petitioner from the employment of the Corporation and to punish him for his deeds, which were never misdeeds and these were also brought to the notice of the Standing Committee, i.e. Appellate Authority, who was called upon to examine the legality and veracity of the order passed by the respondent no.2. Unfortunately, that committee also glossed it over by attaching its approval without showing any reason whatsoever. The Standing Committee thus, have also failed in its duty and fall in line with the legal officer at whose behest the Corporation is acting.
10. The learned advocate for the petitioner has further contended that, assuming for the sake of argument, without conceding with the order impugned that is the order dated 13/03/2009 is correct, then also the same could not have been passed under the elaborate procedure prescribed under Section56 of the B.P.M.C. Act, which makes it incumbent upon the authority to follow the procedure, which admittedly has not been followed as could be seen from the plain reading of the order impugned and therefore, on this ground also the order being absolutely illegal, perverse and is required to be quashed and set aside.
11. The learned advocate for the petitioner further contended that assuming for the sake of argument that the authority was bonafide under an impression of its entitlement to revive the earlier disciplinary proceedings for further action based there upon, then also the power minimum required for observance of principle of natural justice are patently lacking in these proceedings, as admittedly after the pronouncement of the order of industrial complaint and direction and when petitioner was awaiting his reinstatement orders, he was handed over the order of notional socalled reinstatement with immediate termination that is to say the least and unpropitious exercise of powers, which are never vested in the Corporation and/or respondent no.2 and therefore, the order is required to be quashed and set aside.
12. The learned advocate for the Corporation putup written submission after making oral submission at length. It is most appropriate to reproduce the written submission so as to bring out his tenor of submission in his own words.
“A departmental inquiry was initiated against the petitioner. Charge against him was of conducting cases of three workers, who were not employees of the Corporation, before the Labour Court. In his defence, the petitioner did not seriously dispute the fact that he had appeared on behalf of the said three persons, but sought to give an explanation for his appearance on their behalf in Court proceedings. On conclusion of the inquiry, the charges against him were found proved and after according him an opportunity of hearing as regards quantum of punishment, he was removed from service of the Corporation by an order dated 29.09.2005.
Aggrieved by said order of removal from service, the petitioner filed a complaint under Section33 A of the Industrial Disputes Act, 1947 registered as Reference (IT) No.35 of 2006 principally on the ground that the said action is in contravention of Section33 of the Act, in as much as his conditions of service were altered despite pendency of a reference, being IT reference No.129 of 1999, before Industrial Tribunal. The Labour Court found that the Corporation had not made any application seeking approval as contemplated by Section 33 (2)(b) of the Act and relying upon the decision of the Hon'ble Supreme Court of India in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma & Ors. Reported in (220) 2 SCCC 244, declared the action of the Corporation as violative of Section 33 of the Act and accordingly directed reinstatement of the petitioner in service.
In Reference (IT) No.35 of 2006, an application was moved by the petitioner seeking direction to the Corporation to lead evidence and justify its decision of terminating his services. Since the factum of having appeared on behalf of three persons was not denied by the petitioner, there was no occasion for the Corporation to lead evidence to prove an admitted fact. It appears that for this reason the said application was not allowed by the Labour Court. In fact, the burden was on the petitioner to lead evidence to show that his explanation was correct and, therefore, the termination order was bad. No evidence was led by the petitioner before the Labour Court to prove his version. Under the circumstances, it cannot be said that the Labour lCourt is deemed to have adjudicated on merits and found in favour of the employee. On the contrary, the reasonable reading of the award would be that the Labour Court was not inclined to accept the version of petitioner about the merits of the termination order and for this reason decided the reference only on the technical ground of contravention of Section 33 of the Act.
Since there was no decision on merits and correctness of the order of termination passed by the Corporation, and it was set aside only on a technical ground there was no necessity for the Corporation to challenge the said award. Accordingly, the Corporation accepted the award of the Labour Court and implemented the same by reinstating the petitioner. The Corporation has thereafter removed the petitioner from service by passing a fresh order dated 13.03.2009.
The contention of the petitioner that the award dated 09.01.2009 passed by the Labour Court in Reference (IT) No.35 of 2006 operates as a bar against the Corporation from removing the petitioner from service afresh is misconceived and legally not tenable. No point touching the merits of termination order was decided by the Labour Court as is evident from a bare reading of the award and hence the question of application of principle of res judicata does not arise. Even the principle of constructive res judicata cannot be invoked in this case. The point regarding correctness of the findings recorded in the order passed in the departmental inquiry was raised by the petitioner on the basis of his explanation and allegations and it was for him to lead evidence on those points and prove the same. It cannot legitimately be inferred, applying the principle of constructive res judicata that the Labour Court is deemed to have decided that the explanation of the employee is accepted by it and for that reason also the termination order was bad.
It is settled law that an issue raised but not pressed and not answered by the Court in favour of the party raising the said issue is deemed to have been rejected by the Court. In the present case, legality of the departmental inquiry having been challenged by the petitioner but not having been accepted by the Court is deemed to have been rejected by the Labour Court and for this reason also the Corporation is not estopped in law in relying upon the findings of the departmental inquiry for taking fresh action against the petitioner for proved charges of misconduct.
Petitioner has not raised any dispute before the Labour Court against the new termination order dated 13.03.2009. Instead, the petitioner has chosen to prefer an appeal before the Appellate Authority provided under the Bombay Provincial Municipal Corporation Act and has now preferred the present petition against concurrent findings of fact. No other ground except that the award of the Labour Court in I.T. Reference 35 of 2006 operates as res judicata having been raised by the petitioner in the present petition, the petition deserves to be dismissed.”
13. The learned advocate for the respondent relying upon the decision in the case of The Bhavnagar Municipality V/s. Alibhai Karimbhai and others reported in (1977) 2 SCC 350 and contended that the decision or adjudication upon limited issue as it is evident from the order passed in favour of the petitioner cannot be construed as adjudication on all points so as to preclude the employer to fall back upon the original disciplinary proceedings for taking further action as at the best it can be said that the duty cast upon the Tribunal under Section33A of the I.D. Act for deciding the complaint as if it is a reference is abandoned by tribunal for which the employer cannot be saddled with any handicaps in taking further action based upon the earlier disciplinary proceedings and reiterated what he has submitted earlier that the principle of constructive res judicata also would not be applicable or of any avail to the petitioner workman.
14. Shri Nanavati, learned advocate appearing for the respondent submitted that production of documents at this stage would be of no help to the petitioner as when the tribunal itself has confined its finding purely on question of legality of termination without following provision of Section33 (2) (b) of the I. D. Act, pursuant to purshis or application filed by the petitioner, this production may be construed and appreciated in accordance with law thereof.
15. This Court has heard learned advocate for the parties and perused the petition and annexures appended thereof. Before adverting to the rival submissions of learned advocate for the parties, it is most appropriate to set out few indisputable aspects emerging there from as under :
(i) The petitioner received chargesheet dated 07/08/1999, alleging breach of Rule15 of Gujarat Civil Service (Conduct) Rules, 1971 as the petitioner alleged to have appeared and defended the workmen purported to be acted under the provision of Section33 of I.D.Act, 1947 in respect of the employer's workmen who were not employed by the Corporation in the case before the Labour Court/Industrial Court. The names of the employees for whom the petitioner appeared and represented is also mentioned in the charge. The charge is thus to the effect that under the guise of union activities, petitioner was undertaking commercial activities in breach of Rule15 of the Gujarat Civil Service (Conduct) Rules, 1971 which prohibits public servant to undertake any commercial activities during the course of the employment. The charge sheet does not contain either the matter number or the Court before which the unemployed three employees or workmen were alleged to have been represented by the workman in the proceedings. Though those three employees, who have been named in the chargesheet, charge no.1 have been said to be not in employment or were never in the employment of the Corporation. The petitioner has placed on record the bunch of documents accepted during the course of submission before the Industrial Tribunal during adjudication of the complaint, where from it emerges that Exh.23 is communication from one advocate, who was at the penal of the advocate engaged or used to be engaged by the Corporation indicating that he did not make any complaints or allegations against the petitioner. He has got nothing to do with the complaint mentioned. The letter dated 06/10/1988 had not been sent by him nor has he do anything with it. This letter was perceived to be basis for initiating the disciplinary proceedings by the petitioner. On petitioner's inquiring with the Corporation, Corporation in terms and unequivocally replied to the petitioner vide communication dated 08/01/2003, which is at Exh.24 that the chargesheet was not based upon the complaint or application received from said advocate Shri Bhavesh Vyas as mentioned thereunder, nor is it based upon any complaint. The documents produced contains one communication being Exh.25 is a letter dated 06/01/1999 issued by the Talim Adhikari i.e. Officer (Training) to Administrative Officer, Legal, which contains request to the Administrative Officer, Legal, that though Shri Bhavesh Vyas has himself informed the Corporation that he has not issued any letter, yet the contents of the letter is required to be examined qua its veracity and therefore, the letter along with the file is referred to the Legal Officer for his opinion as to whether the petitioner has committed any breach of any rule and it was solicited from him that after examining, he may opine that the petitioner was bound by the rules. The reply of the petitioner to the second show cause notice is also placed on record being Exh.27, wherein in detail the allegations with malafied allegations etc., is urged for resisting any order of punishment that was proposed to be passed.
(ii) The inquiry ultimately resulted into imposition of penalty of removal vide order dated 29/09/2005, which gave rise to filing of the complaint and raising dispute as stated hereinabove.
(iii) The petitioner in the complaint filed a purshis Exh.18, seeking permission of the tribunal for leading limited evidence for the purpose of justifying the complaint under Section33A of the I.D. Act and his nonemployment during the period reserving his liberty to lead full fledged further evidence in support of his assertion. This purshis was passed on 14/11/2008, whereon the permission of Court was granted on the very same day as the said purshis was endorsed to be noted by the concerned advocate of the other side. The petitioner workman thus, examined himself by entering into witness box and gave limited evidence qua justifying his complaint and prayers in complaint, though while giving such evidence, petitioner did refer to his complaint and narration there of and deposed that they are correct. The petitioner also deposed that at that stage no detail evidence of inquiry was warranted as from the employer side, there is no attempt to justify the legality or veracity of inquiry. Therefore, without prejudice to his right to his contention with regard to illegality of disciplinary action based upon false charge and violation of principle of natural justice that deposition was given, confining it to the breach of Section33 of the I.D. Act. This deposition is recorded at Exh.19. The crossexamination appears to have been confined to the deposition qua complaint under Section33A of the I.D. Act. The tribunal has rendered its verdict mainly based upon clear and undisputed breach of provision of Section33 (2) (b) of the I.D. Act in as much as during the pendency of references the mandatory provision of seeking approval was not valid and on that basis declared that the action of respondent in imposing penalty of removal was illegal and directed the Corporation to reinstate with full back wages and Rs.2,000/ cost vide order dated 09/01/2009.
(iv) This order was not complied with as the petitioner had not been permitted to resume his duties at all. The petitioner after said order was passed, was visited that order dated 13/03/2009, which petitioner said that he received it on 19th March, 2009. Wherein, the respondent no.2 indicated that in light of the development of the incident including the latest direction of the Court, the petitioner was treated to have been in service and accordingly the original termination order/removal order was revoked or treated to have been revoked and petitioner was ordered to be paid all monitory benefits, admissible pays there upon till the date of passing of the order as if the petitioner's service was never terminated. The very same order in the later part contains that the petitioner's reply to the second show cause notice pursuant to the inquiry on the misconduct, which followed after the chargesheet were found to be not acceptable. The order of removal is required to be passed and accordingly the order was passed imposing the penalty of removal upon the petitioner, which was passed under Section 56 (2) (G) of the B.P.M.C. Act. In other words, in the very same order contrary to the said action as to whether the case is interwoven and it was projected as if there was proper compliance with the order of the tribunal as the petitioner was given all the monitory benefits admissible on the basis of the direction without permitting the petitioner to resume his duties, which would be amounting to compliance with the order of reinstatement and straight way in the very same order treating the petitioner notionally to be in service and ordering actual payment of benefits arising there from. The disciplinary proceedings were treated to be intact and exists which were made basis for passing fresh order of removal without referring to any requirement and/or following principle of natural justice.
(v) Thus, it is evident from the aforesaid facts that from the date of the order of the tribunal and complaint till the date, the petitioner received the order impugned. The petitioner was not in receipt of any communication much less in permission to resume his duties and therefore, the petitioner was constrained to takeout proceedings by way of petition being S.C.A. No.10392 of 2009, which came to be disposed of on 05/04/2010, as the alternative remedy in the form of appeal before the Standing Committee. Thus, the standing committee also in its meeting held on 13/08/2010, considered the remarks of the Commissioner without affording any opportunity to the petitioner to reflect on the remark of the Commissioner and straight way passed cryptic resolution endorsing the order of punishment of removal requiring petitioner to challenge both that is original order of removal and its approval by the standing committee dated 13/08/2010 by way of this petition under Article 226 of the Constitution of India.
16. In light of the aforesaid back drop of almost indisputable aspects, let us examine the rival contentions of learned advocate for the parties. The petitioner's counsel has emphatically submitted that the entire development of events upto filing of this petition would unequivocally point to the consistent practice of victimizing the petitioner by the Corporation. The narration containing allegations with regard to victimization and the development of the events would indicate that had there not been the impugned order is actuated on account of well planned design of depriving the petitioner of his legitimate right to receive fruit of his litigation, which was in his favour. This Court is of the considered view that there appears to be considerable force in submission canvassed on behalf of the petitioner in this respect as narration of event and that letter emanating from the Trading Officer to the Legal Officer/ Advisor betrays clearly that there was uncanny enthusiasm on the part of the concerned in bringing home some breach which would be made use of against the petitioner. The Court is constrained to observe this on account of the language employed in the letter had it not been so then, the tenor of the letter would have been absolutely different. This shall be so, when the fact that there was a letter addressed in the name of the penal advocate Shri Bhavesh Vyas, who in turn on inquiry had unequivocally informed all the concerned that he had got nothing to do with the letter and he never wrote such letter. Despite these facts coming on record, when there is persistence to pursue this with specific request to examine it from the angle to indicate any breach does not seem to be mere official act which is required to be done impartially and which required attachment of ordinary prudence would have addressed the letter with all balanced in, which would never betrays undue enthusiasm on the part of the concerned. Therefore, this Court is of the view that the submission qua lack of bonafide in the entire exercise cannot be lightly brushed aside by this Court.
17. The Court is unable to accept the submission of learned advocate for the respondent that the respondentCorporation had legitimate right to revive the disciplinary proceedings for issuing fresh order of removal as the inquiry, findings and the punishment thereof were never adjudicated upon by the tribunal and tribunal merely passed an order on technical ground of noncompliance of the provision of Section33 (2) (b) of the I.D. Act. The Court is of the considered view that looking to the order passed by the tribunal dated 09/01/2009, the learned advocate for the respondent is justified in making the submission that their exists no finding qua the veracity of the inquiry proceedings. But, that in itself would not clothe Corporation with any authority or power to or right to resurrect the proceedings which were subject matter of complaint, which was required to be adjudicated upon as if it is a full fledged reference. The parties chosen not to lead the evidence in inquiry proceedings cannot be said to be a valid ground for a party to arrogate to its right which never existed for resurrecting the proceedings for issuing fresh order as if there exists no adjudication upon the earlier order, which was quashed, which had been infact passed pursuant to that disciplinary proceedings. The provision of Section33A of the I.D. Act, 1947 itself is required to be set out as under :
33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
18. A plain reading of this provision would clearly indicate as to how such a complaint is to be adjudicated upon, when it is clearly provided under the statute that such a complaint is to be adjudicated upon as full fledged reference then the possibility of availing opportunity to justifying action on all counts and if not availed cannot render the proceedings to be proceeded confined to mere technical aspect. The relevant portion of the Apex Court's observation in Jaipur Zila... (Supra) would fortify the observation of this Court that the legislative scheme so far as the Section33A of the I.D. Act is concerned is to provide speedy acceptance remedy without subjecting workman to undertake the other available remedy of raising dispute referring it to the State and the State referring it to tribunal. When complaint is made and when it is established that it is made complaining breach of Section33 (2) (b) of the I.D. Act, then the parties are at guard to take all the available grounds justifying the respective stand. In the instant case, the purshis filed by the workman Exh.18 is required to be viewed from that angle. The complaint filed by the workman contains an elaborate allegation and averments challenging the legality and veracity of the charge, the charge sheet, the requirement of chargesheet and the lacuna in the inquiry. This complaint was therefore, required to be treated as statement of claim, which will partake characteristic of pleading in the proceedings. The pleadings, thus, cannot be treated as a proof of what they contain. But, when those pleadings have not been controverted or chosen not to produce by pleading cogent evidence and when there is an attempt to justify inquiry and when the workman is filing purshis by way of protection, that purshis cannot be said to be a purshis, which would clothe the Corporation with its future right, which is known to resurrect the proceedings as if the Corporation was dependent upon the action of the workman as the workman had done his duty by filing complaint when there was no further proceedings or attempt to lead evidence. The workman's attempt to lead evidence for the limited purpose cannot be permitted to be capitalized upon by the employer so as to instill right, which does not exist upon Corporation to resurrect the departmental proceedings and whittle down the order, which is not permissible under the scheme of Section33A of the I.D. Act. Therefore, there cannot be repeated adjudication of issues one and all. Therefore, time and again, it has not been established that under Section33A of the I.D. Act, complaint are to be decided as if they are full fledged reference and therefore, when the tribunal was called upon to adjudicate and when the parties did not lead the evidence, the employer after receiving the order, could not have resurrected the departmental proceedings, result whereof were declared to be illegal per say. The illegality, thus, declared by the tribunal would pervade in respect of not only the order but the departmental proceedings also and as a result thereof the relief which is granted is important and the relief is reinstatement in light of the decision of Jaipur Zila... (Supra). Therefore, to establish the controversy qua the misconduct is concerned is required to be treated as coming to an end and therefore, it was in my view not open to the Corporation to resurrect the word proceedings to pass the fresh order without affording any opportunity to the petitioner.
19. In my view when the Corporation chose not to lead any evidence justifying their inquiry proceedings and/or which was then the Corporation is deemed to have givenup their ground of supporting the inquiry and therefore, the Corporation was not justified in resurrect the said proceedings.
20. Without in any manner, diluting the aforesaid observations, if the Court considers the other aspects independent of the aforesaid observations and examine the order impugned, then the impugned order otherwise also not tenable in the eye of law, as the said order is not the order, which could be said to be passed in compliance with the order dated 09/01/2009 passed by the tribunal, wherein the Corporation under clear obligation to reinstatement the petitioner. The reinstatement does not mean payment of dues, wages and money. The reinstatement if one looks at the meaning given in the Advanced Law Lexicon would mean restoration on same position of the employment. In the instant case, the workman has not resumed his duty for a second in the Corporation and he has been slapped with one more order in the form of socalled notional reinstatement, which is nothing but sheer exhibition of lack of respect and regard to the provision of law. The private employer is not permitted to refer to such a practice, then the State authority like Corporation can never to be expected to act or even thought of acting in this fashion. The Court is of the view that the strongest word on the earth would not be sufficient to deprecate the conduct evinced by the Corporation in slapping the order upon the petitioner. The order is passed without affording any opportunity to the petitioner to justify or to indicate that Corporation was ever thinking of passing such order that also is required to be viewed from the angle of belief of malafide, raised by the petitioner as it can be said that there is an attempt to see that the petitioner may not given chance to challenge the order and obtain interim order. Therefore, in my view, the entire exercise indicating lack of bonafide to say the least, which would compel the Court to observe that the State instrument and the Corporation can never be permitted such an act and such an act of Corporation can never to be countenanced by the Court and therefore, the order of Corporation would be required to be quashed and set aside.
21. The learned counsel for the Corporation has placed reliance upon The Bhavnagar Municipality V/s. Alibhai Karimbhai and others reported in (1977) 2 SCC 350 is also of no avail as it is a Corporation, who has not availed the opportunity to the petitioner, and therefore, tribunal cannot be said to be faulted in any manner. Apart therefrom, it is also required to be noted that the tribunal not deciding the matter on all issues cannot be permitted to be relied upon as a ground for justifying resurrect the earlier disciplinary proceedings as the order of tribunal has remained unchallenged rather there is an attempt to disservice of order by way of socalled notional reinstatement order, which is also coupled with the removal order, which in my view to say the least blatant disregard to established norms and provision of law.
22. Therefore, the petition is required to be allowed with costs and is accordingly allowed. The respondents are hereby directed to reinstate the petitioner forthwith, which will amount to reinstating the petitioner, permitting him to discharge his duties as if the impugned order had never been passed and pay him all the consequential benefits arising therefrom and those consequential benefits be paid within a week from the date of receipt of this order, and the reinstatement effect forthwith. Rule made absolute with costs. Hence, this S.C.A. with C.A. is hereby disposed of. Direct service is permitted.
[S. R. Brahmbhatt, J.]
Rathod..