2006 Supreme(Guj) 387

2006 (3) GCD 2514 (Guj)
Hon’ble Mr. Justice M.K. Rathod
Rameshbhai D. Patel [Kheda]
Versus
United Catalyst India Ltd.
Special Civil Application No. 1254 of 19961
Decided on 11/07/2006

Point in Issue :
Termination — Order of — In absence of departmental inquiry — Violation of principles of Natural Justice — Sustainability.

Headnote:Head Note :

       (a) Service and Employment — Termination — Ground of — Loss of — Confidence — Absence of finding — Sustainability — Contention of loss of confidence was raised by the management against workman before the Labour Court without making allegations in that regard in the show-cause notice — Allegation of loss of confidence has been considered to be stigma and, therefore, same is required to be proved by holding inquiry against workman in accordance with the principles of natural justice — That apart management has taken stand before the Labour Court knowing fully well that departmental inquiry was not initiated against workman then why management has not sought permission from Labour Court to prove misconduct as alleged by leading proper evidence against workman — In view of that merely because management has raised contention that it has lost confidence it can not be accepted.

       Held :

       Court is of the opinion that the plea of loss of confidence is requiring holding of departmental inquiry. Show-cause notice dated 02.09.1983 also would require holding of departmental inquiry and yet, undisputedly no departmental inquiry was initiated against the workman by the management. Services of workman were terminated by oral order dated 23.09.1983. Therefore, mere contention about loss of confidence is not enough but same is required to be proved by producing cogent and convincing evidence in that regard since it amounts to stigma against workman and the management has failed to do so after raising of such contention against the workman. One more aspect is also required to be noted that the management has taken stand before the Labour Court knowing fully well that the departmental inquiry was not initiated against the workman, then, why the management has not sought permission from the Labour Court to prove misconduct by leading proper evidence against workman before the Labour Court. No such permission was sought by the management before the Labour Court. In view of that, contention raised by the management about the loss of confidence cannot be accepted and same is, therefore, not accepted. [Para 21]

       Head Note :

       (b) Service and Employment — Termination — Order of — In absence of departmental inquiry — Violation of principles of Natural Justice — Sustainability — Finding as to — When charges levelled against workman were not admitted it was the legal obligation on the part of the management under the standing orders to hold full-fledged departmental inquiry against the workman before taking any punitive action against him — Since that has not been done the punitive action taken against workman is violative of principles of natural justice — Before the Conciliation Officer management first stated that it was holding departmental inquiry whereas before Labour Court it contended that workman had admitted charges, therefore, no inquiry was necessary — In view of the facts Labour Court was right in coming to the conclusion that in respect of the allegation departmental inquiry was necessary — In absence of departmental inquiry Labour Court rightly set aside the oral order of termination.

       Held :

       In reply to the show-cause notice also, charges levelled against the workman were not admitted by the workman. No departmental inquiry was initiated by the management against the workman under the Standing Orders which is applicable to the Management. Therefore, it was the legal obligation on the part of the Management to hold full flagged departmental inquiry against the workman before taking any punitive action against the workman. Since, that has not been done, punitive action has been taken against the workman without initiating any such departmental inquiry, the action is violative of the principles of natural justice. Stand before the Conciliation Officer as well as before the Labour Court Management was taking inconsistent and contradictory stand. Before the Conciliation Officer, it was the stand taken by the Management that they are holding departmental inquiry whereas before the Labour Court, different stand has been taken that the workman has admitted charges levelled against him and, therefore, no inquiry is necessary. Therefore, in view of this discussion and after perusing the award in question and also after considering the reason given by the Labour Court, according to Courts opinion, Labour Court is right in coming to the conclusion that in respect of the allegations made against the workman in the show-cause notice dated 02.09.1983, departmental inquiry was necessary but no departmental inquiry was held and, therefore, according to Courts opinion, Labour Court was right in setting aside the oral order of termination on that ground. [Para 16]

       Head Note :

       (c) Industrial Disputes Act, 1947 (Central Act 14 of 1947) — Section 2(s) — Workman — Definition of — Chemist — Inclusion of — Finding as to — Chemist no doubt ensure that the workmen assisting them do their work properly but that small amount of supervision is only incidental to their own technical work of testing and giving the results of tests, to the company — Even the company’s witness admitted that chemists do a large part of the work themselves though he added that they do guide and direct Analysts and Laboratory Attendants — Even this evidence does not show that this guidance and direction to the Laboratory Attendants and Analysts is the principal or substantial work for which a chemist is employed — Consequently decision of Tribunal in respect of the chemists holding them to be employed on technical work and not in supervisory capacity is justified and it is accordingly upheld — They have rightly been held workmen.

       Held :

       The Chemists, no doubt, ensure that the workmen assisting them do their work properly; but that small amount of supervision is only incidental to their own technical work of testing and giving the results of tests to the Company. Even the Company’s witness Harish Bhargava admitted that the Chemists do a large part of the work themselves, though he added that the Chemists do guide and direct the Analysts and Laboratory Attendant so as to ensure that the work in the laboratory is performed efficiently and properly. Even his evidence does not show that this guidance and direction to the laboratory attendant and analysts is the principal or substantial work for which a Chemist is employed. In fact, the work is ancillary to the main work which is done by the Chemists themselves. The decision of the Tribunal, consequently, in respect of the Chemists, holding them to be employed on technical work and not in supervisory capacity, must be upheld. They have rightly been held to be workmen.’ [Para 29]

       According to Courts opinion, contention raised by Mr. Patel that the respondent was not covered by the definition of workman under Section 2(s) of the Act cannot be accepted and Labour Court was right in appreciating this aspect of the matter. [Para 30]

       Head Note :

       (d) Constitution of India, 1950 — Article 227 — Jurisdiction — Interference — Scope of — Stated.

       Held :

       This Court is having very limited powers while exercising powers under Article 227 of the Constitution of India. Unless the findings recorded by the Labour Court are proved to be perverse or contrary to the evidence on record, this Court cannot disturb the same being the finding of fact. Here, since it has not been proved by the management that the findings of Labour Court are perverse or contrary to evidence on record, these findings of fact cannot be disturbed by this Court. Similarly Mr. Mankad has also not been able to point out that the Labour Court has erred in granting only 50% back wages and full back wages should be awarded. [Para 40]

       No doubt Article 227 confers a right of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said Article as a matter of right. In fact power under this Article cast a duty upon the High Court to keep the inferior Courts and Tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such Courts and Tribunals in accordance with law conferring powers within the ambit of the enactments creating such Courts and Tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this Article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate Courts and Tribunals resulting in grave injustice to any party. [Para 42]

       It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of the inferior Tribunal except where the findings are perverse and not based on any material evidence or it resulted in manifest injustice. Except to the limited extent indicated above, the High Court has no jurisdiction. [Para 42]

       Law Laid Down :

       The power conferred on the High Court under Articles 226 and 227 of Constitution is to advance justice and not to thwart it.

       Case Law Analysis :

       Biswajit Dev Roy vs. Indian Overseas Bank & Ors., 1987 (I) LLJ 288 [Para 7];; Burmah Shell Oil Storage and Distributing Co. of India Ltd. (CA No. 1477 of 1970); The Burma Shell Management of Staff Association vs. Burmah Shell Management Staff Association & Ors, 1971 LabIC 699 = AIR 1971 SC 922;; Management of Bombay Ammonia (Madras) Pvt. Ltd. Madras and The Additional Commissioner for Workmen’s Compensation II Madras & Anr., 1988 (1) LLJ Madras Page 203 [Para 7];; Chandu Lal vs. The Management of M/s. Pan American World Airways Inc., AIR 1985 SC 1128 = 1985 (II) LLJ 181 (SC) [Para 7];; Bombay Ammonia (Madars) Pvt. Ltd., Madras vs. The Additional Commissioner for Workmen’s Compensation II, 1988 (I) LLJ 203 [Para 7];; Sadhna Sahkari Samiti Basantpur Ltd. vs. Presiding Officer, Labour Court & Anr., 1993 (II) LLJ 468 [Para 17];; M/s. Sahu Jain Service Ltd., vs. The First Labour Court, Calcutta & Ors., 1984 LabIC NOC 92 (Cal.) [Para 18];; Hotel Horizon Pvt. Ltd. vs. Bhartiya Kamgar Karmachari Mahasangh & Anr., 2002 (I) LLJ 186 [Para 18];; Western India Plywoods Ltd. vs. Industrial Tribunal, Calicut & Ors., 1982 (II) LLJ 113 [Para 20];; Vallabhbhai Kalyanbhai Sutariya vs. Divisional Controller, GSRTC, Rajkot, 1993 (2) GLR 1159;; R.G. Makwana vs. Gujarat State Road Transport Corporation & Anr., 1986 GLH 678 = 1986 (1) GLR 392 [Para 26];; Ved Prakash Gupta vs. M/s. Delton Cable India (P) Ltd., AIR 1984 SC 914 [Para 28];; Shri Sudhirkumar s/o Sourindrakumar Roy vs. M/s Ferro Alloys Corporation Ltd., 1992 LabIC 657 [Para 29];; The Workmen of Assam Match Co. Ltd. And the Presiding Officer, Labour Court, Assam & Anr., 1973 (II) LLJ 279 [Para 35];; Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) & Ors., AIR 1984 SC 1805 [Para 37];; Laxmikant Revchand Bhojwani & Anr. vs. Pratapsing Mohansing Pardeshi, 1995 (6) SCC 576;; Ouseph Mathai & Ors. vs. M. Abdul Khadir, 2002 (1) SCC 319;; Waryam Singh vs. Amarnath, 1954 SCR 565 [Para 42];; Nagendra Nath Bose vs. Commr. of Hills Division, 1958 SCR 1240 [Para 42];; R. vs. Northumber Compensation Appeal Tribunal, Exparte Shaw, 1952 (1) All ER 122, 128 [Para 42];; Roshan Deen vs. Preeti Lal, 2002 (1) SCC 100 [Para 43];; Trimbak Gangadhar Teland, 1977 (2) SCC 437 [Para 42].— Relied on

       Appearance :

       Mr. Rajesh P. Mankad, for the Petitioner No. 1,

       Mr. Ashish R. Majmudar, for the Respondent in both the matters.

       Conclusion :

       Petitioner in both the petitions has not been able to point out any infirmity or jurisdictional error committed by labour Court in the impugned award, therefore, petitions are required to be dismissed.

       Cases Referred :

       S.K. Maini vs. M/s. Carona Sahu Company Ltd. & Ors., AIR 1994 SC 1825;; Dharmarathakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution vs. Educational Appellate Tribunal & Ors., 1999 (7) SCC 332;; Addl. District Magistrate (City) Agra vs. Prabhakar Chaturvedi & Ors., AIR 1996 SC 2359;; U.P. State Brass Ware Corporation Ltd. & Anr. vs. Uday Narain Pandey, 2006 (1) SCC 479;; Associated Corporation of Industries vs. Additional Commissioner for Workmen’s Compensation 1972 (I) LLJ-108;; United Wire Ropes Limited vs. Additional Commissioner 1976 (I) LLJ-226;; Intermediate Education U.P. vs. Kumari Chirta Srivastava, AIR 1970 SC 1039;; S.L. Kapoor vs. Jagmohan, AIR 1981;; All India Reserve Bank Employee’s Association vs. Reserve Bank of India, 1965 (2) Lab LJ 175 = AIR 1966 SC 305;; Arkal Govind Raj Rao. vs. Ciba Geigy of India Ltd., AIR 1985 SC 985 = 1985 Lab IC 1008;; UP State Brassware Corporation Ltd. & Anr. vs. Uday Narain Pandey, 2006 (1) SCC 479;; Bhahutmal Raichand Oswal vs. Laxmibai R. Tarta, AIR 1975 SC 1297;; State of U.P. vs. District Judge, Unnao, 1984 (2) SCC 673 = AIR 1984 SC 1401;; Biswajit Dev Roy vs. Indian Overseas Bank & Ors., 1987 (I) LLJ 288.

       Decided in Favour of :

       Respondents

        Petitions Dismissed