Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
HIMANSHU
JAIN
CIVIL APPEAL NO. 1762 OF 2007
Digitally signed by
HIMANSHU JAIN
Date: 2017.01.09
10:56:25 +0530
J.H. PATEL (D) BY LRS . AND ORS. Appellant(s)
VERSUS
NUBOARD MANUFACTURING CO. LTD. & ORS. Respondent(s)
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JUDGEMENT
H.L. GOKHALE, J .
•
This appeal seeks to challenge the common
judgment and order dated 23. 5. 2003 rendered by the
High Court of Allahabad in Writ Petition No.9498 of
1981 which was filed by the first respondent
management, and Writ Petition No.10321 of 1981 which
was filed by the appellants workmen. The writ
petition which was filed by the management has been
allowed whereas the one filed by the workmen has
been dismissed. Both these writ petitions sought to
challenge the award dated 31. 3 .1981 passed by the
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Labour Court at Bareilly in Adjudication Case No. 95
of 1979. Heard Mr. R.D. Upadhyay, learned counsel
in support of this appeal and Mr. Sunny Chaudhary
learned counsel appearing for the respondents.
\? b
2. The facts leading to this appeal are this
wise . One Mr. J.H. Patel, was elected on B.5.1996
as the General Secretary of the Nuboard Karmachari
Sangh, a Trade Union registered under the provisions
of the Trade Unions Act. The said Karmachari Sangh
was affiliated to Hind Maj door Panchayat . One Mr.
Ram Kishan was the Organizing Secretary and Mr. Asha
Ram was the Vice President of the said Karnachari
Sangh. It is the further case of the worlanen that on
2 0 . B . 197 7 they wrote to the Registrar of the Trade
e
Unions, U.P. at Kanpur to declare their office
bearers, including the above three persons, as the
"protected worlanen", and they were so declared by
the Registrar of Trade Unions by his letter dated
15.2.1978.
3. It is the case of t he worlanen that on
10. 4 .1977, after the formation of the Trade Union,
Patel was collecting
when the aforesaid J .H.
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subscription from the members of the Union, he was
called to the off ice of the employer, and was told
to ref rain
from
conducting
the Trade Union
activities,
and
the Receipt
Book and the
subscription which he had collected, was snatched
away from him. The said Mr. Patel went to the Police
Station to lodge a complaint, but the complaint was
not recorded, and therefore he was constrained to
file a criminal complaint before the concerned
Magistrate. There was no dispute that in that
complaint, officers of the respondent Company
including A.H. Shah, Director and J.B. Dalal,
Administrative Manager, were arraigned as accused.
The complaint was taken up by the Magistrate but
• inasmuch as the evidence was found insufficient, the
learned Magistrate held that the complaint was not
proved, and therefore by his judgment and order
dated 29.6.1978 acquitted all the four accused
the
including the aforesaid two officers of
respondent Company.
4. Thereafter, the management of the respondent
Company chose to serve a charge-sheet dated
15.7.1978 on the concerned worJanen. In the said
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charge-sheet, essentially the charge was that the
workmen concerned had lodged a report to the
Superintendent of Police, Rampur, containing false
allegations against four officers of the management,
and that was done with an intent that the police
officer should use the lawful power against the said
persons. There is no dispute that the workmen filed
an explanation and that despite the explanation, no
inquiry was held and an order of dismissal was
passed on 17.7.1978. In fact the order dated
17. 7 .197 8 in terms states: "In view of the self
evident fact no further inquiry in the matter is
called for, a copy of the judgment of the Special
Judicial Magistrate, Rampur speaks for itself."
Therefore, on that basis the dismissal order was
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passed.
5. The appellants workmen challenged their
dismissal from service leading to the aforesaid
Adjudication Case No. 95 of 1979 before the Labour
Court. In the proceeding before the Labour Court,
essentially three issues were raised by the worlonen .
Firstly, that they were "protected worlonen" and
action against them was not justified. Secondly,
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that another proceeding was pending before the
Labour Court and in view of the provision of Section
6E(2) (b) of the Uttar Pradesh Industrial Disputes
Act which is in pari passu to Section 32 (2) (b) of
the Industrial Disputes Act, 1947, an approval
application was required to be filed and inasmuch as
the said application was not filed, the termination
was bad in law. Thirdly, that the misconduct as
alleged was not proved, and that lodging a criminal
case against the officers of the respondent Company
was not a misconduct.
6. In the adjudication case before the Labour
Court, the workmen examined themselves and the
• management examined, amongst others, Mr. A.H. Shah,
Director (EW-1) and Mr. J.B. Dalal, Administrative
Officer (E-2) . The Labour Court accepted the
contention of the management with respect to the
misconduct, but held that no inquiry was held at the
departmental level prior to the order of dismissal.
Thus, there was denial of the principles of natural
justice and fairness . Hence, although it declined
reinstatement, it passed the order granting 50% of
the back-wages from the date of dismissal until the
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date
of judgment and order passed by the
Labour
Court i.e . 31.3.1981. Being aggrieved by
that
judgment and order of the Labour Court, the
management filed the earlier referred writ petition
to dispute the award of this compensation and the
workmen filed the other writ petition to challenge
that part of the order which denied them
reinstatement.
7. The learned Single Judge of the High Court
heard both the writ petitions together and formed an
opinion that the removal was justified in view of
the earlier decision of the Criminal Court and
therefore, held that the award of back-wages was not
• contemplated. He therefore set aside that part of
the order of the Labour Court by his judgment and
order dated 23.5.2003. Being aggrieved by this
judgment and order the appellants have filed this
appeal by special leave.
Mr.
8. R. D. Upadhyay, learned counsel for the
appellants pointed out that although the Complaint
before the Magistrate had been dismissed, the
management chose to hold an independent inquiry at
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their level, and it was their responsibility to
prove the misconduct, firstly at the departmental
level and if not there, later on in the Labour
Court . Admittedly, no departmental inquiry was held.
As far as the order of the Labour Court is
concerned, if one peruses that order, it is clearly
seen that there is no discussion with respect to the
evidence by the management before the Labour Court
on the basis of which it could be said that the
Labour Court arrived at the conclusion that the
misconduct was proved. That apart, it was also the
submission on behalf of the workmen that they were
"protected workmen" and that no prior approval was
obtained to conduct any inquiry.
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9. Mr. Sunny Chaudhary, learned counsel
appearing for the respondents submitted that
undoubtedly the workmen had lodged the Complaint
against the senior officers of the respondent
Company in the Magistrate's Court. This damaged the
reputation of the Company, and this amounted to
defamation and therefore the management was entitled
to proceed at the departmental level . According to
him, the conduct on the part of the workmen amounted
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to 'disorderly
behaviour' and although the
management had passed the dismissal order merely on
receiving the explanation from the workmen (and
without holding an inquiry}, evidence had been led
before the Labour Court and after considering the
evidence, the learned Judge had come to the
conclusion that misconduct had been established. He
submitted that therefore the Labour Court was wrong
in awarding 50% compensation from the date of
dismissal until the date of its judgment and the
High Court was fully justified in passing the order
that it had passed deleting the order of
compensation which was awarded to the workmen.
- We have noted the submissions of both the
10.
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learned counsel. As far as the issue of the workmen
being "protected workmen" is concerned, presently we
are not required to go into that aspect. Similarly,
as far as the issue of non obtaining prior approval
is concerned, inasmuch as Section 6(E}(2}(b) of the
Uttar Pradesh Industrial Disputes Act is pari passu
to section 32(2)(b} of the Industrial Disputes Act,
1947, undoubtedly the management was required to
obtain the prior approval from the Labour Court
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inasmuch as an earlier proceeding was pending in
the Labour Court. However , the consequence thereof
cannot be that the management will be disentitled to
prove the misconduct in Court. This has been the
view taken by th i s Court in Rajasthan State Road
Transport Corporation Anr. Vs. Satya Prakash,
&
( 201 3) 9 232, which explains the law laid down
sec
earl i er by a Constitution Bench of this Court in
Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. Vs. Ram
Gopa l Sharma and Ors., (2002) 2 SCC 244. Therefore,
t he management cannot be faulted merely on that
ground .
The fact , however, remains that the
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opportunity to prove the misconduct was made
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avai l able to t he management in the Labour Court in
the present case . The employer examined two of their
Mr . (EW-1)
witnesses, namely A. H. Shah, Director and
Mr . J . B. Dalal, Administrative Officer (E-2) •
However , from the judgment rendered by the Labour
C our t what we find is that there is no discussion,
whatsoever , wi th respect to the evidence led by
t hes e t wo witnesses . The j udgment does not contain
a ny r eason in support of the conclusion arrived at
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by th e Labour Court that misconduct was proved
before the Labour Court on t he basis of the evidence
which was l ed be fo re it. The management chose to
proceed departmentally against the workmen after the
acquittal of it s o fficers in the Criminal Court. It
did not afford any opportunity to the workmen at the
departmental level . Afterwards, when the dispute was
t ake n to the Labou r Court, it was the responsibility
of the management to prove the misconduct in Court,
and th at ought to be done by l eading evidence of the
witnesses which, of course , t hey did. However, the
evidence has to be discussed by the Labour Court.
In th e present c ase , t here is no discussion
whatsoe ver about the evidence as to why the Labour
Court c ame to t he c onclusion that the misconduct is
established. In the circumstances, the findings of
the La bour C ourt cannot be sustained that the
management had proved the misconduct. Inasmuch as
the misconduct was not proved, the workmen were
entitled to get the relief that they were seeking,
namely the declarat i on that the termination of their
services was bad in l aw and then the consequential
relief . When the matter was carried to the High
Court , th e High Court also lost sight of that fact
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and,
on the other hand,
it deleted whatever
compensation was awarded to the worlanen by the
Labour Court. In our view, the order of the High
Court is erroneous on the very ground.
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12. In the circumstances, this appeal will have
to be allowed which we hereby allow, set aside the
order of the High Court as well as that of the
Labour Court and decide the dispute raised by the
worlanen in their favour, namely
that the
termination of their services was unjustified on
merits .
13. Then we come to the aspect of relief. Out of
three appellants before this Court, J .H. Patel has
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expired and his heirs are on record. Mr. Upadhyay
does not dispute that as far as the other two
worlonen Mr. Asharam and Ram Kishan are concerned,
they must have reached the age of superannuation. In
the circumstances, we award compensation to these
worlonen towards back-wages quantified at 50%, with
interest at 6% per annum, from the date of dismissal
until the date of superannuation/death, whichever is
earlier.
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14 . At this stage, on
instructions, Mr.
C haudhary ,
le arned counsel appearing
for the
respondents states that the first respondent Company
is no longer functioning, and a proceeding is
)
pend ing before th e BIFR . He therefore makes a
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request that the back-wages be reduced to 40% and no
int e rest be awarded thereon . Mr. Upadhyay learned
cou nse l for the appellants submits that the
appellants are agreeable to this suggestion provided
the said amount is paid within a period of three
months hereafter. In the circumstances, we give this
option to the first r espondent viz to pay 40% of the
back-wa ges from the date of dismissal until the date
earlier
of superannuation/death, whichever is
provid ed the amount i s so paid within three months.
I f the compensation is so paid, the amount of
interest wi ll stand waived . I n the event, however,
the amount of 40% is not paid within a period of
thr ee months herea ft er , the earlier part of the
ord er , namely that respondent No.1 should pay 50% of
the back-wages with 6% interest will be operative.
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15. Appeal allowed in the above terms,
though~
without any order as to costs.
··~············J
(H.L. GOKHALE)
. . • . . . • • . • . . .•.••••.•••• J
(KURIAN JOSEPH)
New Delhi;
January 22, 2014 •
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•
IN THE SUPREME COURT OF INDIA
9
CIVIL APPELLATE JURISDICTION
I . A. N0.7 IN CIVIL APPEAL N0.1762/2007
J.H.Patel (D) by Lrs . & Others .. Applicants
Versus
Nuboard Mfq. Co . Ltd. & Others . . Respondents
0 RD ER
Heard learned counsel for the applicants.
For the reasons stated in the application for
restoration, the application for restoration is allowed.
. • The order dated 15t h July, 2009 dismissinq the appeal in
default of appearance and for non-prosecution is recalled
and the appeal , is restored to its original number.
List the appeal for hearing in due course .
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H~
..... .. ...... . ...... .. . . ... J.
NEW DELHI;
[R.M . LODHA]
DECEMBER 04, 2009.
..
I
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1762 OF 2007
J.H. Patel (D} by Lrs . & O rs Appellants
Versus
Nuboard Mfg . Co. Ltd. & Ors. Respondents
0 RD ER
The mat ter was called out twice.
No one appears for the parties.
The appeal i s dismissed in default of appearance ar.d
for non-prosecut i0n.
J.
\.\ . : .I~~ -
.....
(MARKAND~ Y · ~j · c n
... ..... J.
(V.S. SIRPURKAR)
DELHI;
NE W
2CO~
JU LY 15,
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I .A . NOS . 9 & 10 OF 2014
IN
CIVIL APPEAL NO . 1762 OF 2007
J . H. PATEL (D) BY LRS . AND ORS . APPELLANTS
VERSUS
NUBOARD MFG . CO . LTD . & ORS . RESPONDENTS
0 R D E R
The learned counsel for the respondents submits that
despite two opportunities granted to the appellants, there is
no response to the reply filed by the respondents .
We find no justification to keep applications pending
any more .
Accordingly , I .A . Nos . 9 & 10 of 2014 stand disposed
.. . . . .. . .. .... . . J.
4
[KURIAN JOSEPH]
~ o f.
l.fel ~
.. . . . . . . . . · . .. . .. . ... J.
[ROHINTON FALI NARIMAN]
NEW DELHI ;
SEPTEMBER 26 , 2016