2005 Supreme(Guj) 719

Gujarat High Court
Judgename :Akil Kureshi
GUAJRAT AMBUJA CEMENT PVT.LTD - Appellant
Versus
U.B.GADHE - Respondent
SPECIAL CIVIL APPLICATION 7584 of 2005
Decided On : 10/24/2005

Headnote:Point in Issue :

       Conciliation proceedings - Commencement of - Order of dismissal - Propriety of - Finding as to.

       Head Note :

       (a) Service and Employment - Domestic inquiry - Findings and punishment - Legality of - Jurisdiction of Court to interfere - Scope of and principles to follow - Indicated.

       Held :

       From the decisions, following legal principles can be culled out:-

       (i) A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt.

       (ii) The High Court cannot sit in appeal over the decision of the domestic Tribunal. Therefore, where there are some relevant materials, which the authority has accepted and which material may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 of the Constitution of India to review the materials and to arrive at an independent finding on the materials.

       (iii) If the inquiry is properly held, the question of adequacy of reliability of evidence cannot be gone into by the High Court. High Court cannot interfere with the penalty if the conclusion of the competent authority is based on evidence, even if some of it is found to be irrelevant or extraneous to the matter.

       (iv) In case of disciplinary inquiry, technical rules of evidence have no application

       (v) The only consideration that Court has in its judicial review is to consider whether the conclusion is based on evidence and supports the findings or whether the conclusion is based on no evidence. To put it differently, the High Court can interfere if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonably prudent person would have ever reached. [Para 7.2]

       The observations were made with regard to the scope of jurisdiction of the High Court under Article 226 of the Constitution of India, same would however, apply also to the powers of the Labour Court or Industrial Tribunal while examining the conclusions arrived at by the employer during the course of departmental inquiry. [Para 7.3]

       Head Note :

       (b) Service and Employment - Dismissal - Order of - Interference with - Reinstatement - Jurisdiction - Sustainability - Finding as to - The evidence on record supports the case of employer that concerned workmen abused the officers of the company, prevented other employees from resuming duties and gave threat to their family members - Labour Court was, therefore, not justified in coming to the conclusion that most of the charges levelled against workmen were not established - Labour Court also even while dealing with the question of quantum of punishment has found misconduct on the part of workmen and ordered withholding of back-wages - Court refused to accept the contention of learned Counsel for workmen that before Conciliation Officer employer had agreed to reinstate the workman and take sympathetic view of the matter - In this regard the document was sufficiently clear - It does not provide that workmen will be first reinstated in services and only, thereafter, there will be a review against them - The Court, therefore, concluded that Labour Court committed error in interfering with the order of dismissal passed by employer.

       Held :

       The Labour Court in-fact recorded that the evidence of the witnesses do support the case of the employer that the concerned workmen had abused the officers of the Company, had prevented other workers from resuming duties, had given threats to the family members of the workers and had stopped the vehicles of the Company entering into the premises. The Labour Court however, observed that when police protection was available and security staff was also present, the workmen could have been prevented from behaving in a vulgar manner or stopping the vehicle. On the basis of the observations that no police complaints were filed against such workers, this aspect of the matter was not believed by the Labour Court. [Para 7.4]

       Court does not finds that Labour Court considered the evidence on record to come to the conclusions. The power of the Labour Court to interfere with the findings arrived at by the employer are extremely narrow. If there is some evidence on record to permit the employee to draw such conclusions, it is not for the Labour Court to decide the sufficiency of such evidence and unless the conclusions are based on no evidence and, therefore, perverse, Labour Court could not have interfered with the same. [Para 7.5]

       When the Labour Court found that the workmen had proceeded on illegal strike and that they were leading participants in such a strike, the Labour Court ought not to have interfered with the quantum of punishment especially when it was established that the employer is a Public Utility Service and that the strike prolonged for a period of four to five months. Even in absence of any further proof of involvement of the workmen for other misconduct of unruly behaviour, abusing superiors officers, preventing officers from entering the premises, preventing coworkers from resuming duties and threatening the family members of the workmen and collecting union subscription illegally, it is doubtful whether the Labour Court could have reduced the punishment and substituted the order of dismissal by lesser punishment. [Para 8.1]

       The understanding, therefore, did not provide that such workmen will be first reinstated in services and only thereafter, there will be a review against them. Quite apart from clear language of the understanding such a condition as sought to be interpreted by the Advocates for the workmen would render the condition unworkable. If the workmen concerned are to be reinstated in service, there is, therefore, no question of reviewing the dismissal orders. The Condition Nos. 1 and 4 therefore, were separate and not overlapping. Court does not find any breach of condition as suggested. With respect to the question of not considering their cases sympathetically also, it may be noted that the management did set up a case that a review was undertaken and that their cases were considered sympathetically, however, it was found that it is not possible to recall the dismissal orders. [Para 11]

       Head Note :

       (c) Constitution of India, 1950 - Article 226 - Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Sections 2(d), 2(e), 11, 12, 12(1) to 12(6), 18(1), 18(3), 20, 22, 22(1), 22(2) and 33 - Industrial Disputes (Gujarat) Rules, 1966 - Rules 10, 11, 76 and 77 - Conciliation proceedings - Commencement of before Conciliation Officer - Order of dismissal - Propriety of - Finding as to - In absence of notice under Section 22 of the Act about strike or lockout, conciliation proceedings commence from the date where the formal intimation in writing has been given by Conciliation Officer declaring his intention to commence the conciliation proceedings with effect from such date as may be specified - In the present case admittedly no such notice under Section 22 of the Act was received and also no formal notice expressing his desire to commence the conciliation proceeding was issued by Conciliation Officer - In view of these accepted facts conciliation proceedings in the case had never commenced requiring employer to follow the procedure laid down under Section 33 of the Act - It could not, therefore, be concluded that any conciliation proceeding were pending when the employer passed the impugned order of dismissal - Court accordingly set aside the award passed by Labour Court.

       Held :

       Commencement of conciliation proceedings in all cases not covered by Sub-section (1) of Section 20 would, therefore, have to be held from the date where the formal intimation in writing has been given by Conciliation Officer declaring his intention to commence the conciliation proceedings with effect from such date as may be specified. It can, therefore, be seen that conciliation proceedings would commence when the Conciliation Officer gives a formal intimation in writing to the parties concerned declaring his intention to commence the conciliation proceedings with effect from such date as may be specified therein. It is only for the cases covered under Sub-section (1) of Section 20 that a deeming fiction is created to provide that conciliation proceedings shall be deemed to have commenced on the date on which notice of strike or lock out under Section 22 of the Industrial Disputes Act is received. In the present case admittedly, no such notice under Section 22 was received. Again admittedly, Conciliation Officer never issued any formal notice under Rule 11 of the said rules expressing his desire to commence the conciliation proceedings. In that view of the matter in Courts opinion conciliation proceedings had never commenced before the Conciliation Officer which would require the employer to follow the procedure laid down under Section 33 of the Industrial Disputes Act. [Para 18.10]

       With the available material on record, in view of the statutory provisions, Court unable to hold that conciliation proceedings were pending before the Conciliation Officer when the employer dismissed the employees from services. [Para 19]

       Law Laid Down :

       Commencement of conciliation proceedings in all cases not covered by Section 20(1) of the Act would be held from the date the formal intimation in writing has been given by Conciliation Officer declaring his intention to do so from such date as may be specified.

       Cases Law Analysis :

       Mill Manager, Model Mills Nagpur Ltd. vs. Dharam Das, Etc., AIR 1958 SC 311;; [Para 3.3];; Mahindra and Mahindra Ltd. vs. N.B. Narawade, 2005 (3) SCC 134 [Para 3.9];; B.C. Chaturvedi vs. Union of India & Ors., AIR 1996 SC 484 [Para 8];; The Manager, Panitola Tea Estate belonging to Jokai Assam Tea Co. Ltd. vs. The Conciliation Officer, Labour Inspector, Tinsukia & Anr., 1966 Assam 138 [Para 16];; Pratap Chandra Mohanty vs. Union of India & Anr., AIR 1972 Ori. 610 [Para 16.1];; M/s. Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad, 1999 SC 2423 [Para 19].-Relied on

       Conclusion :

       In view of available material on record and statutory provisions the Court refused to accept the contention of Advocate for employees that when employer passed the impugned order of dismissal of employees conciliation proceeding were pending before Conciliation Officer so as to vitiate the order.

       Cases Referred :

       India General Navigation & Railway Co. Ltd. & Anr. vs. Their Workmen, AIR 1960 SC 219;; Railway Board, New Delhi & Anr. vs. Niranjan Singh, AIR 1969 SC 966;; Oriental Textile Finishing Mills, Amritsar vs. Labour Court, Jullundur & Ors., 1971 (3) SCC;; U.P. State Bridge Corporation Ltd. & Ors. vs. U.P. Rajya Setu Nigam Karamchari Sangh, 2004 SCC 268;; M/s. Obettee Pvt. Ltd. vs. Mohd. Shafiq Khan, 2005 AIR SCW 4752;; Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma & Ors., 2002 (2) SCC 244;; Nirmala J. Jhala vs. State of Gujarat, 2004 (3) GLR 2142.

       Decided in Favour of :

       Employer-Appellants

       Applications of Employer Allowed

       Application by Employees Rejected