1996 Supreme(Bom) 141

IN THE HIGH COURT OF BOMBAY
G.R. Majithia D.K. Trivedi, JJ.
M/s. Oriental Containers Ltd..... Petitioner.
Versus
Engineering Workers Association another.... Respondents.
Writ Petition No. 2473 of 1994 with W.P. No. 1500 of 1995 with Notice of Motion No. 208 of 1995 in Writ Petition No. 2473 of 1994, decided on 8-3-1996.
Advocates appeared :
J.P. Cama with Dr. D.Y. Chandrachud, Mrs. N.R. Patankar and V. P. Sawant for petitioner, in W.P. No. 2473 of 1994, for respondent, in W.P.No. 1500 of 1995 for petitioner in N. of M. No. 208 of 1995.
Mrs. N.D. Buch for respondent No. 1, in W.P.No. 2473 of 1995, for petitioner, in W.P.No. 1500 of 1995 for applicants, in N. of M. No. 208 of 1995.

Headnote:Article 14-See Industrial Disputes Act, 1947-Sections 10(1) and 11-A.

       Article 14-Charges-Found Identical-No ground for differentiation in punishment.

       There can be no disputes with the abstract proposition that a finding of fact recorded by a quasi-judicial tribunal cannot be interferd with in writ jurisdiction except where it is found that the tribunals finding is based on a complete misconception of law or on no evidence or that no reasonable man could have come to this conclusion to which it had arrived at.

       The Labour Court has erred in not having a clear graps over the undisputed facts and the directions given by this Court while selling aside Part II of the A ward and remitting the case to the Labour Court. The High Court had specifically directed the Labour Court to examine the questions raised with regard to justifiability of the order of dismissal, victimization, discrimination and the proportionality of the punishment. These observations postulated that the Labour Court was enjoined to examine whether in the matter of punishment the management had acted arbitrarily and the arbitrariness had resulted in victimization. Indisputably, the allegation of misconduct against all the 54 workmen, including those 16 workmen who tendered apology during the course of the domestic enquiry which was accepted and they were reinstated in service, proceeded in identical terms. One of the workmen who was also proceeded on identical charge and was dismissed from service and who tendered apology, after reinstatement in service, appeared as a witness for the management to prove the charge against the other workmen. The evidence of this witness is the only substantive evidence to prove the charge. This indicates the shall owness of the accusation levelled, as the management had no other substantive evidence to substantiate the charge except to press into service the evidence of an accomplice. The Enquiry Officer in his statement admitted that the 16 workmen whose apology was accepted by the management became members of the union sponsored by the management. This admission lends credence to the version of the Association that the management has set up a rival union and ws forcing the workers to become its members so that the Association could be deprived of its bargaining power. The Association had been impressing upon the management to regularise the service of 200 casual workers who were in the companys employment for more than 4 years. Adherence to this demand by the Association may be to the disliking of the management and they wanted the union convenient to it. There is no distinguishing feature between the cases of the workmen in respect of whom the charges were dropped an were reinstated in service and the workmen mentioned in Schedule D. The Labour Court tried to draw an illusroy distinction between what was alleged and what was proved. The Labour Court did not understand what was the charges against these workmen. The charge, as observed earlier, proceeded on identical grounds. Court is unable to comprehend on what basis the Labour Court has thought it convenient to treat the workmen mentioned in Schedule D in regard to the quantum of punishment differently. Section. II-A of the Industrial Disputes Act confers the power on the Tribunal in an adjudication proceeding relating to discharge of dismissal of a workman, in cases wherever necessary, to set aside the order of discharge or dismissal. The Labour Court is empowered not only direct reinstatement of workmen on such terms and conditions, if any, it thinks fit but also to given such other relief to the workmen, including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. If the Labour Court had correctly understood the import of Section 11-A of the Act and the direction of the this Court referred to above, it would not have erred in the mailer of awarding the punishment.

       Dispute arose between the management and workmen of Gujarat Steel Tubes Ltd. The workmen itensifled their demand which ultimately led to strike. The management terminated the service of a large number of workmen and recruited fresh workmen. The dispute was referred to an arbitrator nominated by them. The arbitrator held that the action of the management was justified. The award of the arbitrator was challenged in writ petition under Article 226. The High Court reversed the award and substantially directed reinstatement.

       Section 3-See Industrial Disputes Act, 1947-Seclions 10(1), 11-A and 12(5).

       Sections 3 and 102-Benevolent provisions contained in Section 17-Benefit of-When can be given?

       The 27 workmen who have been reinstated in service under the A ward of the Labour Court have filed affidavits that they were not working. In any establishment during the period from the date of their dismissal till the date of filing the affidavits in this Court. Section 17-B of the I.D. Act requires a workmen to file an affidavit before the High Court or the Supreme Court where the employer has preferred any proceedings against the A ward of reinstatement of the workman that he had not been employed in any establishment during the pendency of such proceedings. Once such an affidavit has been filed by the workman, he has discharged the onus on him. By virtue of the

       provisions of Section 17-B, the burden of proof then shifts to the employer. It is then for the employer to satisfy the High Court or the Supreme Court that the workman, in fact, had been employed and he had been receiving adequate remuneration during such period or part thereof. If the employer succeeds in satisfying the Court in that behalf, the Court then shall order that the wages contemplated by this section shall not be payable by the employer to the workman for the period of the pendency of the proceedings before the Court or part thereof. In the instant case, the workmen have discharged the burden of proof cast upon them. The employer has not placed any material before this Court that the workmen had been receiving adequate remuneration during this period. The employer has referred to a report of some defective agency but has not filed an affidavit slating that the report has been accepted to be correct. The report of the defective agency is not, per se any evidence. Evidence has to be led in proof thereof and no evidence has been led in the instant case and no reliance can be placed upon the report of the defective agency as is sought to be contended. The employer has successfully succeeded in preventing the workmen from getting the benefit of the benevolent provisions contained in Section 17-B of the I.O. Act.

       Sections 10(1) and 11-A - Constitution of India, Article 14-Charges-Found identical-No ground for differentiation in punishment.

       There can be no disputes with the abstract proposition that a finding of fact recorded by a quasi judicial tribunal cannot be interfered with in writ jurisdiction except where it is found that the tribunals finding is based on a complete misconception of law or on no evidence or that no reasonable man could have come to this conclusion to which it had arrived at.

       The Labour Court has erred in not having a clear grasp over the undisputed facts and the directions given by this Court while setting aside Part II of the Award and remitting the case to the Labour Court. The High Court had specifically directed the Labour Court to examine the questions raised with regard to justifiability of the order of dismissal, victimization, discrimination and the proportionality of the punishment. These observations postulated that the Labour Court was enjoined to examine whether in the matter of punishment the management had acted arbitrarily and the arbitrariness had resulted in victimization. Indisputably, the allegation of misconduct against all the S4 workmen, including those 16 workmen who tendered apology during the course of the domestic enquiry which was accepted and they were reinstated in service, proceeded in identical terms. One of the workmen who was also proceeded on identical charge and was dismissed form service and who tendered apology, after reinstatement in service, appeared as a witness for the management to prove the charge against the other workmen. The evidence of this witness is the only substantive evidence to prove the charge. This indicates the sole owners of the accusation levelled, as the management had no other substantive evidence to substantiate the charge except to press into service the evidence of an accomplice. The Enquiry Officer in his statement admitted that the 16 workmen whose apology was accepted by the management became members of the union sponsored by the management. This admission lends crendence to the version of the Association that the management has set up a rival union and was forcing the workers to become it, members so that the Association could be deprived of its bargaining power. The Association had been impressing upon the management to regularise the service of 200 casual workers who were in the companys employment for more than 4 years. Adherence to this demand by the Association may be to the disliking of the management and they wanted the union convenient to it. There is no distinguishing feature between the cases of the workmen in respect of whom the charges were dropped and were reinstated in service and the workmen mentioned in Schedule O. The Labour Court tried to draw an illusory distinction between what was alleged and what was proved. The Labour Court did not understand what were the charges against these workmen. The charge, as observed earlier, proceeded on identical grounds. Court is unable to comprehend on what basis the Labour Court has thought it convenient to treat the workmen mentioned in Schedule O in regard to the quantum of punishment differently. Section 11-A of the Industrial Disputes Act confers the power on the Tribunal in an adjudication proceeding relating to discharge or dismissal of a workman, in cases wherever necessary, to set aside the order of discharge or dismissal. The Labour Court is empowered not only direct reinstatement of workmen on such terms and conditions, if any, it thinks fit but also to give such other relief to the workmen, including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. If the Labour Court had correctly understood the import of Section 11-A of the Act and the direction of the this Court, referred to above, it would not have erred in the matter of awarding the punishment.

       Dispute arose between the management and workmen of Gujarat Steel Tubes Ltd. The Workmen intensified their demand which ultimately led to strike. The management terminated the service of a large number of workmen and recruited fresh workmen. The dispute was referred to an arbitrator nominated by them. The arbitrator held that the action of the management was justified. The A ward of the arbitrator was challenged in writ petition under Article 226. The High Court reversed the award and substantially directed reinstatement.

       Sections 10(1), 11-A and 17-B - Evidence Act, 1872-Sectlons 3 and 102-Benevolent provisions contained in Section 17- B-Benefit of-When can be given?

       Held; the 27 workmen who have been reinstated in service under the Award of the Labour Court have filed affidavits that they were not working in any establishment during the period from the date of their dismissal till the date of filing the affidavits in this Court. Section 17-B of the I.D. Act requires a workmen to file an affidavit before the High Court or the Supreme Court where the employer has preferred any proceedings against the Award of reinstatement of the workman that he had not been employed in any establishment during the pendency of such proceedings. Once such an affidavit has been filed by the workman, he has discharged the onus on him. By virtue of the provisions of Section 17-B, the burden of proof then shifts to the employer. It is then for the employer to satisfy the High Court or the Supreme Court that the workman, in fact, had been employed and he had been receiving adequate remuneration during such period or part thereof. If the employer succeeds in satisfying the Court in that behalf, the Court then shall order that the wages contemplated by this section shall not be payable by the employer to the workman for the period of the pendency of the proceedings before the Court or part thereof. In the instant case, the workmen have discharged the burden of proof cast upon them. The employer has not placed any material before this Court that the workmen had been receiving adequate remuneration during this period. The employer has referred to a report of some defective agency but has not filed an affidavit stating that the report has been accepted to be correct. The report of the defective agency is not, per se any evidence. Evidence has to be led in proof thereof and no evidence has been led in the instant case and no reliance can be placed upon the report of the defective agency as is sought to be contended. The employer has successfully succeeded in preventing the workmen from getting the benefit of the benevolent provisions contained in Section 17-B of the I.D. Act.

       Sections 10(1), 11-A and 12(5)-Evidence Act, 1872-Section 3- Facts - Uncontroverted by Management-They to be taken as correct.

       The evidence of the Enquiry Officer corroborates the statement made by the Association in its writ petition and also in the statement of claim submitted before the Labour Court. The Associations stand is that the charge sheet against the 54 employees were in identical terms. No specific part was artributed to each of these charge sheeted employees. Out of the 54 employees, 16 employees, after they became members of the union (BKS) sponsored by the management, were given pardon and reinstated in service. Sambhaji More who was also charge sheeted like the other 53 employees was also given pardon, like the other 16 employees who were given pardon, after he became a member of BKS. Giving pardon to the charge sheeted employees after they joined the union sponsored by the management is not accidental but it must be a condition for reinstating them in service after accepting their apology. From the admissions made by the Enquiry Officer, it can safely be inferred that the management did not want to accept the demand made by the Association for and on behalf of the casual workmen who were its members for their permanent status and in order to mitigate the bargaining power of the Association the management sponsored a rival trade union BKS. The allegation made by the Association in it, writ petition, which remains uncontroverted, that the associates of the underworld gang called the Golden Gang were forcing the members of the Association to join BKS can be treated as true, more particularly when the allegation is not controverted by the management. Indisputably, every allegation of fact made in the writ petition by a writ petitioner has to be controverted by the opposite party and if not controverted specifically, an inference is deductible that it was admitted to be correct. Since the statement of fact made in the writ petition which were not introduced for the first time, were controverted, those facts have to be taken as correct.