AHMEDABAD NEW TEXTILE MILLS Vs. TEXTILE LABOUR ASSOCIATION AHMEDABAD
LAWS(GJH)-1988-6-6
HIGH COURT OF GUJARAT
Decided on June 17,1988

AHMEDABAD NEW TEXTILE MILLS Appellant
VERSUS
Textile Labour Association And Another Respondents





Cited Judgements :-

JAGDISHKUMAR KANJIBHAI CHAUDHARY VS. BANASKANTHA DIST CENTRAL CO OP BANK LIMITED [LAWS(GJH)-2003-11-24] [REFERRED TO]
GUJARAT STATE OF ROAD TRANSPORT CORPORATION VS. D V CHAUHAN [LAWS(GJH)-2006-3-73] [REFERRED TO]
BANCO PRODUCTS INDIA LIMITED VS. PRAVINCHANDRA BHOGILAL PATEL [LAWS(GJH)-2002-2-10] [REFERRED TO]
GUJ STATE ROAD TRANSPORT CORPORATION VS. DV CHAUHAN [LAWS(GJH)-2006-3-32] [REFERRED TO]


JUDGEMENT

A.M.AHMADI - (1.)The workman Noormahmad Pirbhai (Second respondent) was serving in the Sarni Department of the Ahmedabad New Textile Mills (Now a unit of National Textile Corporation) at all material times. He was also a representative of the Textile Labour Association (First respondent) in the Sarni Department of the Mill in 1981 Two show cause notices first dated 15/09/1981 and the second dated 21/09/1981 containing allegations of misconduct by the said workman were served upon him by the management. Immediately thereafter he was placed under suspension with effect from 22/09/1981 In the first show cause notice Exhibit 10 dated 16/09/1981 it was alleged that he proceeded on sick leave from 10/08/1981 to 20th August 1981 and on n 21/08/1981 forwarded certificates of sickness and fitness from E.S.I. Corporation but did not report for work and remained absent without leave with effect from 21/08/1981 and later produced a certificate of Dr. C. S. Ciao dated 14/09/1981 to the effect that he was unfit for work with effect from 29/08/1981 to 14/09/1981 It was therefore. alleged that even though he was found at to work as per the E.S.I. Certificate between 21/08/1981 and 2 8/08/1981 he did not report for work and remained absent without leave and without any intimation whatsoever to the Department. It was further alleged that during the said period he was seen outside the gate of the Mill-Company which went to show that he did not require rest as mentioned in Dr. Ciaos certificate. He was therefore called upon to show cause why he remained absent without leave with effect from 21/08/1981 and why he remained absent even after 14/09/1981 So far as the second show clause notice Exhibit 11 dated 21/09/1981 is concerned the charges levelled against him were: (i) he behaved rudely with his superiors; (ii) remained absent without leave from time to time and once for a continuous period of sixteen days; (iii) his production was less than average and he was responsible for inciting other employees to slow down the production; (iv) tried to help his relative with a view to suppressing his involvement in a theft case and (v) he was found indulging in collection of funds for the Union and doing business within the precincts of the Mill-Company. On these charges a departmental inquiry was initiated against him and the inquiry officer submitted a report holding him guilty on all counts. The petitioner-Company therefore dismissed him from service. Against this dismissal the Textile Labour Association preferred an application under Sec. 79 of the Bombay Industrial Relations Act 1946 (hereinafter called the Act) challenging the legality and propriety of the order passed by the employer against the workman.
(2.)The application was heard by the Presiding Officer of the Labour Court Ahmedabad. Evidence was led to show that the inquiry was not legal and proper but subsequently a purshis Exhibit 13 dated 24th December 1982 was tendered stating that the workman did not dispute the processual legality of the inquiry conducted against him but according to him the findings recorded by the inquiry officer were perverse and the punishment meted out to him was unwarranted. The Labour Court therefore concluded that the departmental inquiry insofar as procedural aspect is concerned must be taken to be proper and then proceeded to consider the other two submissions namely whether the findings recorded by the inquiry officer were perverse and whether the punishment of dismissal from service was warranted. The Labour Court then proceeded to examine the evidence pertaining to each charge and came to the conclusion that there was sufficient evidence in support of the finding that the workman had remained absent without leave from 21/08/1981 to 28th August 1981 In otheher words the allegation in the show cause notice Exhibit 10 insofar as it related to absence without leave during the aforesaid period was held established. So far as the five charges leveled in the second show cause notice Exhibit 11 dated 21/09/1981 are concerned the Labour Court came to the conclusion that the first two charges were not proved. It also concluded that the allegation that the production or out put of the workman was less than average was established. It also came to the conclusion that one Abdul Rahim Ganibhai a relative of the workman was apprehended for alleged theft and the workman had attempted to help him by approaching the employees of the Mill to hush up the matter but when this was not possible he tried to incite the workers of the department against Abdul Rahims replacement Ismail Kalubhai. The Labour Court therefore came to the conclusion that the second part of charge (iii) and charge (iv) were established. So far as charge No. (v) is concerned the Labour Court came to the conclusion that the evidence disclosed that he was collecting funds for the Union as its representative from the employees of the Mill but on facts it found that at no time prior to the show cause notice Exhibit 11 dated 21/09/1981 the Mill-Company had ever objected to the same. It also found that the allegation that the workman was selling cloth pieces within the precincts of the Mill was established but the Labour Court thought that this was never objected to in the past and the charge was deliberately put up as the management decided to terminate his service. Taking the totality of the charges found established into consideration the Labour Court observed: The nature of the charges against the applicant do not merit the dismissal from service of the applicant but this is a fit case to deprive him of 75 per cent wages because the act of inciting other workers to give less production in Sarni Department only because Ismail Kalu was made a jobber is an act which cannot be excused without proper punishment irrespective of the fact whether the incitement resulted in dwindling of the production in the Sarni Department or not. As a fact however the Labour Court found from the production record of Sarni Department that the incitement had not resulted in fall in production. In this view that the Labour Court took the Labour Court directed that the workman be reinstated in service either on his original post or in other alternative equivalent post so that his basic pay and emoluments do not suffer with continuity in service. The management was directed to pay 25 per cent back wages with effect from 13/10/1981 upto the date of actual reinstatement in service. No order was made as to costs.
(3.)Feeling aggrieved by the order passed by the Labour Court both the contesting parties preferred appeals under Sec. 84 of the Act. Both these appeals were heard by the Industrial Court (by mistake the designation is shown as Industrial Tribunal). The Industrial Court came to the conclusion that except for the charges: (i) rude behaviour with superiors and (ii) habituated to remain absent without leave the rest of the charges were proved. The Industrial Court thereafter wont into the question of the legality of the order passed by the Labour Court. It came to the conclusion that inciting and instigating colleagues to reduce production with a view to giving the new Jobber Ismail Kalubhai a bad name was a serious matter and therefore it would not he proper to impose the workman on the Company by directing his reinstatement in service. The Court however felt that if the dismissal is sustained the entire family of the workman would be ruined and hence relying on the decision of the Supreme Court in the case of Anilkumar Chakravarti v. Saraswati Tea Company Ltd. 1982 (61) FJR 102: ( AIR 1982 SC 1052) it directed the payment of Rs. 35 600 by way of compensation in lieu of reinstatement. It was also clarified that in addition to the compensation he will be entitled to his provident fund dues. In this view that the Industrial Court took it dismissed the appeal of the workman and partly allowed the appeal of the petitioner-Company. It set aside the order of the Labour Court directing reinstatement in service with 25 per cent back wages and instead directed the payment of Rs. 35 0 by way of compensation in lieu of reinstatement Parties were directed to bear their own costs.
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