Petitioner challenged Labour Court award reinstating respondent for illegal termination due to lack of inquiry and charge sheet. High Court found no scope for interference and dismissed petition.
Discussed the invalidated termination and upheld the order directing reinstatement.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
13-WP-3145-2024.doc
Nikita
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3145 OF 2024
Digitally signed by NIKITA NIKITA KAILAS KAILAS DARADE DARADE Date: 2024.03.14 17:08:44 +0530
M/s. D.B. Corp. Ltd. Through Mir Anwar
Ali… Petitioner
V/s.
Asburt Gonsalves… Respondent
Mr. R. V. Paranjape a/w Mr. T. R. Yadav for the
Petitioner.
Mr. Vinod Sanjiv Shetty, for Respondent No.2.
CORAM:AMIT BORKAR, J.
DATED:MARCH 14, 2024
P.C.:
1.By this petition under article 227 of the Constitution of India
the petitioner is challenging the award passed by the Labour Court
in IDA reference No.9 of 2018 setting aside respondent’s
termination on the ground that no inquiry before termination as
per provisions of Section 23(3) of the Industrial Employment
(Standing Orders) Act, 1946 was made nor any material was
produced before the Labour Court to justify the termination.
2. The facts necessary for adjudication of petition are as under:
3. Respondent joined the petitioner company on the post of ‘System Engineer’ in the Technology Department with effect from
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13-WP-3145-2024.doc
18th February 2008. He was working under Section 2(s) of the
Industrial Disputes Act, 1947. The respondent was accused of
non-performance by HR Manager of the petitioner on 11th August
2016. On 16th August 2016, petitioner’s HR Manager started
forcing the respondent-workman to resign from his job. However,
the respondent has failed to resign. The petitioner’s Manager
terminated respondents services by the event dated 30th August
2016. The respondent was not allowed to join from 1st September
2016. The respondent, therefore, prayed for declaration that his
termination with effect from 31st August 2016 by declaring as
illegal as it was effected without following due process of law. He,
therefore, prayed for relief or reinstatement with continuity of
service of full back wages with effect from 1st September 2016.
4.The petitioner appeared in the proceedings before the
Labour Court and contended that the respondent failed to work
properly and the availed leave without petitioner’s permission.
Despite several warnings the respondent did not show any
improvement, and, therefore, he was warned about the
consequences. On 16th August 2016, petitioner issued last warning
to the respondent and granted three months time to improve his
performance. However on his failure, respondent’s services were
terminated.
5.There is no serious dispute about the existence of industrial
dispute. The Labour Court framed necessary issues. The Labour
Court answered the issue of workman in favour of respondent and
held that the respondent’s services were illegally terminated by the
petitioner.
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6.While recording finding on issue No.3, the Labour Court
thoroughly scanned the evidence of petitioner’s witnesses. Based
on the materials produced by the petitioner, the Labour Court
recorded a finding that in terms of Section 25(3) of the Industrial
Employment (Standing Orders) Act, 1946 order of dismissal under
Sub-clause (d) of Clause (1) was without holding inquiry of the
concerned workman for alleged misconduct.
7.The fact of failure to issuance of charge-sheet is not in
dispute. Moreover, the petitioner failed to prove the misconduct as
alleged by adducing evidence before the Court. With the result, the
Labour Court recorded a finding that in absence of charge-sheet
and materials produced before the Court to prove misconduct,
termination of respondent was without following due process of
law. Considering the period of employment of more than eight and
a half years, the Labour Court directed reinstatement of the
petitioner along with continuity of service.
8.In so far as, relief of back wages is concerned, the
respondent discharged initial burden by stating on oath that he
tried to find a job, but due to stigmatic termination and absence of
relief, he could not find a job. He therefore, stated that he was not
gainfully employed after his termination.
9.The onus,therefore, shifted on the petitioner to prove that
the respondent was gainfully employed elsewhere. However, in
absence of any material to prove respondents employment after
terminating, the Labour Court was justified in directing the
petitioner to pay back wages from the date of termination along
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with the consequential benefit.
10. At this stage, learned advocate for the petitioner submitted
that the petitioner’s company is not having sufficient work to
reinstate the petitioner and, therefore, without relief of
reinstatement need to be converted into relief of compensation.
However, considering the period of employment of eight and a half
years, failure to prove misconduct, in my opinion, the ground for
grant of compensation is not sufficient in law to modify the award
of Labour Court. Hence, his submission to that effect cannot be
accepted.
11. On overall consideration of the material on record, I am of
the opinion that there is no error apparent on the face of record
nor perversity in the findings recorded by the Labour Court.
Hence, there is no merit in the petition.
12. The writ petition stands dismissed.
(AMIT BORKAR, J.)
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2 issues framed by the court
Whether the High Court needs to interfere with the Labour Court's award reinstating the workman who was terminated without a charge sheet and inquiry.
Whether the petitioner successfully demonstrated perversity or error apparent on the face of record in the Labour Court's findings.
3 provisions across 2 enactments
M/s. D.B. Corp. Ltd. Through Mir Anwar Ali
Asburt Gonsalves
AMIT BORKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court