Remanded

M/S Omr Bagla Automotive Systems v. the State of Mah and Anr.

Bombay HC5 May 2012WP/2195/2012

Case brief

AI extract

What is this about?

High Court bench observed clear anomalies regarding dates of application submission and dispute admission by the Conciliation Officer. Finding that the impugned order did not adjudicate critical disputed aspects, the Court remitted the matter to the Conciliation Officer for fresh decision on the approval application with evidence opportunity.

What did the court decide?

Impugned order quashed; matter remanded to Conciliation Officer to decide the approval application afresh after giving opportunity to adduce evidence.

M/S Omr Bagla Automotive Systems Vs the State of Mah… — Service and Employment | Bombay HC (2012)

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1 W.P. 2195........2012

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 2195 OF 2012, WRIT PETITION NO. 2196 OF 2012, WRIT PETITION NO. 2197 OF 2012, WRIT PETITION NO. 2198 OF 2012, WRIT PETITION NO. 2199 OF 2012, WRIT PETITION NO. 2200 OF 2012, WRIT PETITION NO. 2201 OF 2012, WRIT PETITION NO. 2202 OF 2012, WRIT PETITION NO. 2203 OF 2012, WRIT PETITION NO. 2204 OF 2012, WRIT PETITION NO. 2205 OF 2012, WRIT PETITION NO. 2207 OF 2012, WRIT PETITION NO. 2208 OF 2012, WRIT PETITION NO. 2209 OF 2012, WRIT PETITION NO. 2210 OF 2012, WRIT PETITION NO. 2211 OF 2012, WRIT PETITION NO. 2212 OF 2012, WRIT PETITION NO. 2213 OF 2012, WRIT PETITION NO. 2214 OF 2012,

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2 W.P. 2195........2012

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WRIT PETITION NO. 2215 OF 2012, WRIT PETITION NO. 2216 OF 2012, WRIT PETITION NO. 2217 OF 2012, WRIT PETITION NO. 2218 OF 2012, WRIT PETITION NO. 2219 OF 2012, WRIT PETITION NO. 2220 OF 2012, WRIT PETITION NO. 2221 OF 2012, WRIT PETITION NO. 2222 OF 2012, WRIT PETITION NO. 2223 OF 2012, WRIT PETITION NO. 2224 OF 2012, WRIT PETITION NO. 2225 OF 2012, WRIT PETITION NO. 2226 OF 2012, WRIT PETITION NO. 2235 OF 2012, WRIT PETITION NO. 2236 OF 2012, WRIT PETITION NO. 2237 OF 2012, WRIT PETITION NO. 2238 OF 2012, WRIT PETITION NO. 2239 OF 2012.

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M/s OMR Bagla Automotive Systems India Ltd., through its authorized signatory.

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.... PETITIONER

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V E R S U S

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The State of Maharashtra Through Conciliation Officer & Asstt. Commissioner of Labour & Ors. .... RESPONDENTS

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3 W.P. 2195........2012

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Mr.C.U. Singh, Sr. Counsel instructed by

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Mr. B.R.Kaware, Advocate for the Petitioners.

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Mr. S.K.Tambe, Mr. S.B.Pulkundwar, Mr. S.K.Kadam, Mrs. S.D.Shelke, Mrs. R.K.Ladda, Asstt. Govt. Pleaders for the State.

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Mr. S.S.Kulkarni, Advocate for Resp. No. 2.

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CORAM : S.V.GANGAPURWALA, J.

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DATE : 05/05/2012.

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ORAL ORDER :

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All these Writ Petitions involve common question of law and facts, as such are decided together.

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The Petitioner – Company terminated the services of the present respondent no. 2 – workman. The petitioner filed an application purportedly U/s 33 ( 2 ) ( b ) of the Industrial Disputes Act [ For short, ‘ I.D. Act ’ ] for approval. The respondent no. 1 – Conciliation Officer and Assistant Commissioner of Labour, Maljipura, Station Road, Aurangabad [ For short, ‘ Conciliation Officer ’ ] rejected the application. Aggrieved thereby the present Writ Petitions are filed.

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4 W.P. 2195........2012

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Mr. C.U.Singh, learned Sr. counsel for the petitioner submits

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that the application for approval has been rejected only on two ( 2 ) counts - ( i ) departmental enquiry is not held; ( ii ) application for approval is not submitted simultaneously along with the order of termination. According to the learned Sr. Counsel, the dispute is admitted in conciliation proceedings on 31/03/2011 and prior to that date, on 30/03/2011 the termination is effected. It is not mandatory to file application for approval of action.

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The learned Sr. counsel further contends that when the

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circumstances are beyond the control of the management, the departmental enquiry can be dispensed and the management can take action of termination with liberty to prove the charges before the appropriate Court. The provisions of Section 33 ( 2 ) ( b ) of the I.D. Act are complied. One ( 1 ) month wages were paid, so also the application for approval was filed on the same day. The learned Sr. Counsel contends that even in an application under Section 33 ( 2 ) ( b ) of the I.D. Act, the management can prove the mis-conduct by adducing evidence. For the said purpose, the learned Sr. counsel relies on the Judgment of the Apex Court in the case of Engineering Laghu Udyog Employees Union V/s The

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Judge, Labour Court and Industrial Tribunal and another reported in

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2004 ( 3 ) Mh.L.J. - 331 .

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5 W.P. 2195........2012

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The learned Sr. Counsel further contends that an application was moved by the petitioners for recalling the notice of appearance and praying to the authority to hold that while ordering termination dated 30/03/2011, no conciliation proceedings were pending/admitted and formality U/s 33 of the I.D. Act is not warranted and sought recall of the notice. According to the learned Sr. Counsel, the said application was not decided. It is further contended that even as per the Failure report submitted by the Conciliation Officer dated 07/04/2011, the conciliation proceedings were admitted on 31/03/2011. This fact ipso-facto goes to show that on the date of termination, the conciliation proceedings were not admitted. According to the learned Sr. Counsel, even in the affidavit filed by the respondent no. 1, it is made clear that the petitioner had filed an application on 30/03/2011. No dispute in this regard now remains. In view of the above, it is submitted that the impugned order deserves to be quashed and set aside.

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Mr. Kulkarni, learned counsel for respondent no. 2 submits that the application seeking approval was submitted on 31/03/2011. The said fact is evident from the copies of the application itself, wherein endorsement to that effect is made by the office of the respondent no. 1 that it has been received on 31/03/2011.

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6 W.P. 2195........2012

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The learned counsel further contends that as the order of

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termination and the application seeking approval U/s 33 ( 2 ) ( b ) of the I.D. Act is not simultaneous and the application is given on the subsequent date, the proceedings have been rightly rejected by the respondent no. 1. The learned counsel further contends that the petitioners were not prohibited from adducing evidence if they wished to. The petitioners on their own volition did not opt for adducing the evidence, now can not make a grievance about the same. The learned counsel contends that the conciliation proceedings were admitted on 12/03/2010 and it is evident from the order of the High Court in W.P. 7364 of 2010. When this is the position, the application was rightly rejected.

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The learned counsel submits that the management even did not issue charge sheet. The question of holding departmental enquiry is subsequent. In the present case, even no charge sheet was issued. The respondent no. 1 rightly rejected the application as the termination order was without issuing any charge sheet or holding any departmental enquiry. The learned counsel relies on the Judgment of the learned Single Judge of Gujrat High Court in the case of Bhanvarsingh Pukhrajsingh Chauhan V/s Gujarat Urja Vikas Nigam Ltd. and another reported 2007 ( 115 ) FLR – 882 , so also the Judgment of the learned Single Judge of the Delhi High Court in the case of Delhi Transport Corporation V/s

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7 W.P. 2195........2012

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Virender Singh reported in 2005 ( 105 ) FLR – 188 .

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The learned counsel submits that three ( 3 ) conditions are required to be satisfied for seeking approval U/s 33 ( 2 ) ( b ) of the I.D. Act i.e. ( i ) dismissal order, ( ii ) approval application and ( iii ) payment of one month’s wages to the workman. These three ( 3 ) conditions should form part of one transaction. Breach of any of these conditions is sufficient for rejection of approval application. In the present case, as the approval application is on the subsequent date, the rejection of the application was proper. The learned counsel relies on the Judgment of the learned Single Judge of the Gujrath High Court in the case of Ahmedabad Municipal Transport Service V/s Budhabhai Atmaram reported in 2008 ( 118 ) FLR – 489 .

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The learned counsel further contends that the scope of interference by the High Court in such cases is limited. This Court would not sit in Appeal over the findings of the authority and this Court is not expected to re-appreciate the evidence and interfere with the impugned Award. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of the Delhi High Court in the case of Delhi

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Transport Corporation V/s Presiding Officer, Industrial Tribunal – II

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& Anr. Reported in 2011 LLR – 1113 .

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8 W.P. 2195........2012

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The learned counsel further contends that the management has come out with a false theory that it was not possible to conduct departmental enquiry against the present respondents. In fact, in case of other sixteen ( 16 ) employees, who were also terminated during the same period, departmental enquiry was held. This shows that the case put-forth by the petitioner that because of the circumstances, it was not possible to hold departmental enquiry, is erroneous and such a theory can not be sustained.

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The learned counsel further submits that in view of the above, no fault can be found with the order passed by the respondent no. 1 and the Writ Petitions deserve to be dismissed.

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The learned Assistant Govt. Pleaders for respondent no. 1 also support the order passed by the respondent no. 1.

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With the assistance of the learned counsel, I have gone through the order and various documents filed along with the Writ Petitions and the affidavit.

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The fact that the petitioner has terminated the respondent no.

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2 in each petition on 30/03/2011, is not disputed. The dispute is with

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9 W.P. 2195........2012

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regard to the date of submission of application seeking approval U/s 33 ( 2 ) ( b ) of the I.D. Act by the petitioner. In the order, it is stated that the application U/s 33 ( 2 ) ( b ) of the I.D. Act has been submitted before the Conciliation Officer on 31/03/2011, whereas the respondent no. 1 has filed affidavit before this Court, wherein the respondent no. 1 states that the application U/s 33 ( 2 ) ( b ) of the I.D. Act is filed by the petitioner on 30/03/2011. The said statement appears in para no. 6 of the affidavit in reply filed by the respondent no. 1. In view of the same, there is anomaly about the date of presentation of the application itself.

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The next factum of dispute is about the admission of the dispute before the conciliation Officer. In the order, there is no reference as to the date on which the dispute was admitted before the Conciliation Officer, but in the Failure report dated 07/04/2011, the Conciliation Officer has observed and held that the dispute was admitted on 31/03/2011. If the dispute was admitted on 31/03/2011 and if the application for approval is submitted on 30/03/2011, then the question about the necessity of seeking approval U/s 33 ( 2 ) ( b ) of the I.D. Act is required or not, will also have to be considered. There is no clear finding on this aspect on record. In this respect there are rival claims made by the respective parties. The respondent no. 1 while passing the impugned order has not dilated on this aspect at all.

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10 W.P. 2195........2012

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It also appears that the petitioners had moved an application on 09/08/2011 for recalling the notice of appearance. The same is also not decided.

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No doubt, in the present matter, departmental proceedings are not held. However, three ( 3 ) Judges Bench of the Apex Court in the case of Engineering Laghu Udyog referred supra has held thus, :

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“ 9. It is not in dispute that in a proceeding for obtaining approval of an order of dismissal from the Labour Court or the Industrial Tribunal, as the case may be, in terms of Section 33 ( 2 ) ( b ) of the Act or where a reference has been made under section 10 thereof, if it is found that an inquiry has been conducted in violation of the principles of natural justice, the employer is entitled to raise the said question in its written statement by way of preliminary issues and pray for grant of such an opportunity to prove the charges levelled against him.

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10. These three cases were further considered by this Court in Bharat Sugar Mills Limited Vs. Shri Jai Singh ( 1962) 3 S.C.R. 684 and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha V/s Belaund Sugar Company, 1954 LAC 697. It was pointed out that the import effect of

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11 W.P. 2195........2012

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commission to hold an enquiry was merely this : that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out ”. It is true that three of these cases, except Phulbari Tea Estate’s case, were on applications under section 33 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under section 33 or on a reference under section 10 of the Industrial Disputes Act, 1947. In either case, if the enquiry is defective or if no enquiry has been held as required by standing orders, the entire case would be open before the tribunal and the employer wo0uld have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate’s was on a reference under section 10 and the same principle was applied there also, the only difference being that in that case, there was an enquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper ”. The employer, thus, has got a right to adduce evidence before the Tribunal justifying its action, even

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12 W.P. 2195........2012

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where no domestic inquiry whatsoever has been held ”.

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The impugned Judgment and Order does not deal with any of the aforesaid disputed aspects of the matter. The respondent no. 1 ought to have given finding on all the aspects.

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In view of the fact that the Conciliation Officer has not dilated on all the aforesaid aspects and the rival contentions of the parties raised by them, I feel it appropriate to relegate the parties before the respondent no. 1 for deciding the said application U/s 33 ( 2 ) ( b ) of the I.D. Act filed by the petitioner for approval afresh.

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As I am remitting the matter to the respondent no. 1, I have not considered the contentions raised by the learned counsel for the respective parties on their merits. All points are kept open.

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In light of the above, the impugned order is quashed and set aside and the parties are relegated before the Conciliation Officer for deciding the application U/s 33 ( 2 ) ( b ) of the I.D. Act seeking approval filed by the petitioners afresh after giving opportunity to the parties to adduce evidence, if they choose to and after hearing them.

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13 W.P. 2195........2012

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As question of number of workers is involved, the Conciliation Officer shall deal with the applications and decide it as expeditiously as possible and he shall endeavour to decide it as far as possible within six ( 6 ) months from the date of appearance of the parties. The parties shall appear before the Conciliation Officer on 21/05/2012.

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In light of the above, the Writ Petitions are disposed of. No

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costs.

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[ S.V. GANGAPURWALA,J. ]

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KNP/W.P. 2195........2012

M/S Omr Bagla Automotive Systems v. the State of Mah and Anr.

Case brief

What is this about?

What did the court decide?

M/S Omr Bagla Automotive Systems v. the State of Mah and Anr.

Case brief

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