1. Heard learned advocates for both the parties. These two petitions have been filed by the workman and the employer respectfully challenging the award and order dated 05/11/2002 passed in Reference (LCB) No.358/1993 by the Labour Court, Bharuch for the respective reasons mentioned in the respective petitions. As both these petitions have challenged the same award for the reasons mentioned thereunder, both the matters are heard together and are being disposed of by this common judgment and order.
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2. Petitioner in SCA No. 12320/2002 is a workman and has filed this petition under Articles 226 and 227 of the Constitution of India challenging the order in award dated 05/11/2002 passed in Reference (LCB) No.358/1993, so far as the order of the Labour Court declaring that the punishment of termination imposed upon the workman was illegal, but the relief of reinstatement and 60% of back wages were denied, whereas the petitioner in SCA No.696/2003 is an employer which is 1st party in Reference (LCB) No.358/1993 and has challenged the award in so far as the award of 40% of back wages without reinstatement of the workman on the ground that the findings of illegality in respect of imposing of punishment was not proper and as workman has done serious misconduct by assaulting a superior officer, 40% of back wages which have been granted by the Court based upon the evidence is illegal, which is impugned in this petition.
3. Facts, leading to filing these petitions, as could be culled out from the memo of the petitions are deserved to be set out as under:
3.1 The workman was working in the company since 25/11/1984 and receiving the salary of Rs.4000/- per month. The workman's activities were not appreciated by the company as per the say of the company and when the workman had to file Regular Civil Suit No.115/1993 and obtain some interim orders, the company was prompted to bring about his termination on got up cases against him. The workman received charge-sheet on 18/01/1991 alleging inter-alia that he has invited unknown persons who were in inebriated condition and assaulted one Shri Jayant C. Patel. This has happened pursuant to an incident of 09/07/1991 in third shift ensuing altercation. Another charge is of obtaining loan of Rs.6000/- for purchase of vehicle and not producing documents in time. The inquiry followed, which culminated into ultimate punishment of dismissal from 30/07/1993. The said termination SCA/12320/2002 3/10 JUDGMENT was referred for conciliation by the competent authority and the competent authority i.e. Assistant Labour Commissioner vide his order dated 02/11/1993 under the provisions of Section 10(1) of the Industrial Disputes Act, 1947 (herein after referred to as I.D. Act for the sake of brevity) submitted the matter to Labour Court. In the said reference, the question qua illegality, veracity and propriety of disciplinary proceedings was treated as preliminary question and order was made by Labour Court on 31/12/1999 holding that the inquiry was not held in accordance with law and it was not held in consonance with the provisions of law and holding that the inquiry proceedings were illegal and in the interest of justice the inquiry to be conducted before the Court itself. This order was passed on 31/12/1999. The workman challenged the same as the Court had permitted the employer to hold the inquiry or lead evidence afresh before the Court which as per the submission of the workman was impermissible, in view of the law laid down by the Apex Court that when the employer misses the chance of reserving the liberty to seek permission at the earliest point of time, then, the employer is not entitled to pursue another application for seeking said liberty at an advanced stage in the proceedings and therefore when the employer in the instant case had never sought any liberty or reservation for an opportunity to lead evidence to make his case good, justifying his order of dismissal, then the Court while holding the inquiry proceedings illegally, was not justified in giving fresh chance to the employer to hold inquiry.
3.2 Being aggrieved by this, workman had preferred SCA No.2770/2000 and employer also filed SCA No.10842/2000 in as much as the Labour Court's holding the disciplinary proceedings conducted by the employer was illegal and contrary to proceedings and these two petitions were disposed of by this Court (Coram: D.H.Waghela, J.) by common order dated 16/10/2000. The order is SCA/12320/2002 4/10 JUDGMENT required to be set out as under:
"There are cross petitions arising from the same order of Labour Court, Bharuch in Reference (LCB) No. 358/1993 wherein the departmental inquiry held by the employer is held to be illegal and in violation of the principles of natural justice. It is observed in the impugned order that it would be in the interest of justice that enquiry into the charges against the workman is held in the Court.
There is a consensus that, without prejudice to the contention of the parties, the reference case before the Labour Court should proceed further and that it should be heard and disposed as expeditiously as possible. It is fairly conceded that the employer shall lead evidence as regards the misconduct alleged against the workman and shall be permitted to prove the charges. However, the leading of evidence on both the sides and final hearing of the reference may be completed within six months and the parties on both the sides undertake not to seek any unnecessary adjournments. Accordingly, it is ordered that the Labour Court shall hear and decide the reference as expeditiously as possible and dispose the same preferably within six months. Both the petitions are disposed with this order. Rule in Spl.C.A. No.2770/2000 is discharged with no order as to costs. Interim relief stands vacated."
4. As per the observations of the High Court the evidences led were ultimately culminated into the order in award dated 31/12/1999, and both the parties for the reasons stated herein above by filing these two petitions challenge the same order of Reference (LCB) No. 358/1993. Therefore both are disposed of by this common judgment and order.
5. The learned advocate for the workman invited this Court's attention to the decision of the Apex Court reported in the case of Karnataka State Road Transport Corporation Vs. Lakshmidevamma (Smt.) and Ors. reported in (2001) 5 SCC 433 that the employer is not availing the opportunity of reserving the liberty at the appropriate time i.e. at the earliest time while final written statement or while making application under Section 33(2)(B) of the I.D. Act or in the objection and written statement filed under Section 10 of the I.D. Act, and at any time thereafter SCA/12320/2002 5/10 JUDGMENT during the proceedings before the Labour Court is not just, fair and reasonable for both to the employer and the workman. The consideration is on the rule of convenience, expediency and prudence and there is no statutory prohibition, therefore, the procedure which promotes the cause of both employer and workman deserves to be laid down. In short the opportunity of seeking such opportunity / liberty in case where the inquiry is faulty. If at the earliest point of time one has not availed then, at a later stage it would not be open for the employer to claim and seek fresh opportunity of leading evidences. The Court also could not have reserved said liberty as it would be contrary to law laiddown by the Apex Court.
5.1 Learned advocate for the workman submitted that the order passed by this Court (Coram: D.H.Waghela, J.) needs to be read and viewed from the aforesaid principle of law and that would now permit the workman to agitate the inquiry which was held illegal by the competent Court and therefore in that case it would be of no avail.
5.2 Learned advocate for the workman further submitted that the final order by the Court unequivocally go to show that though the incident was said to have been the occurrence of incident resulting into victimization perpetuated by the employer and the time of issuing the order of inquiry is viewed from the angle of the workman seeking the same orders from the Civil Court and therefore the termination is held to be illegal. Unfortunately, the Labour Court has not granted reinstatement with full backwages to this incident. The relief with full reinstatement was required to be granted.
5.3 Learned advocate for the workman further contended that the Labour Court has appreciated these facts and despite these facts SCA/12320/2002 6/10 JUDGMENT being there held that termination was not justified. There is no reasoning given by the Labour Court for not granting 100% back wages with appropriate direction for reinstatement. The reasoning part and the operative part was assailed to be contrary in nature and therefore it is urged that, this Court may pass appropriate orders in both the petitions.
6. Learned advocate for the employer contended that the Labour Court has at many places in the award unequivocally recorded its findings qua establishing of the charge by assaulting the superior officer by the workman and his friends, who were not employees of the establishment. The labour Court could not have observed that the termination was illegal. The findings qua illegality of the termination did not contain any reason which would justify the order impugned. The contrary evidence in itself would require its quashment. The Labour Court's findings qua workman assaulted his superior with the help of friends was sufficient for the Court to completely deny workman even 40% back wages and hence this order was required to be quashed and set aside. Learned Counsel for the employer has indicated that prior to filing this petition, order of Labour Court was complied with fully and 40% of backwages were paid. Further while paying the same employer did not waive its right to challenge the award in appropriate forum. Therefore, in this petition of the employer appropriate order to be passed and quash and set aside the entire award and the workman was not entitle to receive any relief on account of final award of the Court in respect of workman assaulted his superior officer with the help of his friends.
6.1 Learned advocate for the employer in alternative submitted that at the best when the Court had granted 40% of backwages on account of holding termination to be illegal but confirmed findings qua commission of misconduct on the part of the workman in the SCA/12320/2002 7/10 JUDGMENT interest of justice, the said amount should have been treated as full compensation in lieu of reinstatement to the workman. This would have met with an end of justice and therefore no further relief in any manner is required to be granted and in support of this submission learned advocate for the petitioner placed reliance upon the judgment passed by Division Bench in case of Dal Chand and 5 Ors. Vs. Judge, Labour Court and Ors. reported in (2004) III LLJ 38 Rajasthan.
6.2 Learned advocate for the employer submitted that inconsistency in the findings would not help the case of the workman in any manner as the workman's misconduct of assaulting his superior officer is unequivocally held to be proved by the Labour Court and therefore when such findings were recorded, the Court based upon such findings may pass appropriate order including that of awarding of compensation in lieu of any other relief and the Court may pass appropriate order.
7. The Court has heard learned advocates of both the sides, perused the accompanied documents of the petition. It is required to be noted that the disciplinary proceedings held by the employer were held to be illegal and not in consonance with provisions of law. The Labour Court had declared it unequivocally as could be seen from its order dated 31/12/1999. However, while passing this order the Labour Court recorded that the inquiry was held to be illegal but in the circumstances of the case the full fledge inquiry is required to be conducted before the Court. Thus the fact is in dispute that the employer did not ask or pray for any opportunity of leading evidence before the Court. In that eventuality when the Court case to be concluded the ratio laid down by the Apex Court in case of Karnataka State Road Transport Corporation (supra) can be said to be attracted to the provisions and the facts in the hand but the Court has to take into consideration the subsequent SCA/12320/2002 8/10 JUDGMENT order of this Court recording consent of the parties, whereunder the workman and the employer were agreed to course of action to be followed before the Court where the reference was pending. Therefore, this order passed by the Court and reproduced herein above can be said to be assailed between the parties and therefore workman cannot submit that the said order did not give liberty to adduce evidence as the same was containing wordings "without prejudice to" in the earlier portion of the order. But the close reading of the entire order unequivocally lead to one and only conclusion i.e. challenge before the Labour Court was expressly given up by the workman and hence the order was passed, therefore the workman cannot be permitted to argue on words "without prejudice" which would preclude and permit the workman to maintain. In short the workman's advocates submission qua workman's entitlement to assail the final order on the ground of inquiry proceedings of the management is being illegal.
8. This brings the Court to examine the award impugned by both these parties. The Court is of the considered view that the findings recorded by the Labour Court is based upon the serious error and lack of understanding and hence glaring contradictions are recorded in the order which renders the order inconsistent in eye of law. The order at one stage contains the findings qua workman's involvement in respect of assaulting the fellow workman or superior at the gate of the factory premises on account of initiation of proceedings and held that but for the workman's act, the order of inquiry would not have been ordered. This approach of the Court for giving relief of 40% backwages and holding that the termination was illegal leaves much room to make adverse commission. However, more is of the view that both the petitions ought to have been filed under Section 226 and 227 also for one request pleadings of memo and for joining appropriate party. The petitions are treated only under Article 227 of the Constitution of India. The SCA/12320/2002 9/10 JUDGMENT Court need not go beyond the findings but the Court has to observe that the findings as recorded would not justify the need and the relief in any manner. The Court has to add here that the findings qua the entire disciplinary proceedings brought on record on account of the employer having prompt reasons for initiating these proceedings cannot be ignored. The Court is of the view that said order is required to be quashed and set aside and remanded back to the Labour Court.
9. Labour Court is directed to pass an order after being heard both the parties' advocate or their representative. No parties can file evidence afresh. Their case should be considered after examining evidence available on record and those evidence will be the subject matter for further submissions by both the sides. The Court has to record unequivocal findings qua the relief and while recording such findings the Court will have to take into consideration submissions that may be advanced on the part of both the parties' Counsel or the representative. The entire exercise will be completed within 3 months from the date of the receipt of the order.
10. The fact remains to be noted that the employer has infact claimed that as a good citizen employer has paid 40% of backwages as per the order of the Labour Court. Now this plea is required to be taken into consideration. The employer did not comply with the order straightway or "without prejudice" to its right that is seen in arguments. The compliance was subject to the right of the employer to challenge before this Court, but no where in the memo of the petition it was indicated that while complying with the order in February 2002 any such reservation was notified to the workman. Therefore, strictly speaking the employer could not have been justified in filing and maintaining of this petition.
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11. This matter is required to be remanded back and when matter is required to be remanded back, equal opportunity may be given to both the parties to lead their case based upon the existing evidence before the Labour Court. Therefore, it is needless to say that the workman shall refund the amount in case if findings and decision of the Labour Court is against him. In case it is in favour of the workman then this amount would be ignored by the final order of the Labour Court. Petitions are disposed of. Rule made absolute to the aforesaid extent in both the petitions. There shall be no order as to costs.
(S.R.BRAHMBHATT, J.) drashti