2009(1) ALL MR 701
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.N. MHATRE, J.
G. K. Pande Vs. International Airport Authority Of India
Writ Petition No.3513 of 1997
24th September, 2008
Petitioner Counsel: Mr. KIRAN S. BAPAT
Respondent Counsel: Mr. A. S. PATIL,Shri. SHAMRAO S. PATIL
Industrial Disputes Act (1947), Ss.10(1), 25(F) - International Airports Authority of India (General Conditions of Service) Regulations (1980), Regn.31(2)(iv) - Termination of service - Misconduct - Labour Court in Award Part I held that services of workman were terminated illegaly and invalidly - However in award Part II held that workman had abandoned services - Since both circumstances cannot co-exist, two findings arrived at by court are inconsistent and contradictory - Evidence on record not indicating that workman had committed any misconduct - Therefore there was no need of either charge-sheeting him or holding any inquiry against him - Thus award part II of labour court - Liable to be set aside - Workman held entitled to reinstatement with continuity of service - As regards backwages matter remanded back to labour court. (Paras 9, 10, 12, 14)
International Airport Authority of India Vs. Viru Muthu Sukhlingam, 1993(II) CLR 521 [Para 4,6,7]
Theatre Employees' Union Vs. S. V. Kotnis, W.P. No.2013/1983, dt.3-12-1991 [Para 4,11]
Neeta Kaplish Vs. Presiding Officer, Labour Court, (1999)I SCC 517 [Para 4,11]
Airport Authority of India Vs. G. K. Pandey, Appeal No.845/1998, dt.12-10-2004 [Para 4]
Joaquim Francis Tellis Vs. The International Airports Authority of India [Para 5,7]
Burn & Co. Vs. Their Employees, 1957(I) LLJ SC 226 [Para 5]
Municipal Corporation of Greater Mumbai Vs. P. S. Malwankar, 1978 Lab.I.C. 1096 [Para 5]
Niranjan Cinema Vs. P. C. Dubey [Para 5]
Sarabhai Y. P. Vs. Union Bank of India, 2006(5) ALL MR 64 (S.C.)=2006(II) LLJ SC 1122 [Para 5]
The Tata Engineering and Locomotive Co. Ltd., Jamshedpur Vs. The Presiding Officer, Industrial Tribunal, Ranchi, 1980(I) LLJ 403 [Para 5]
International Airport Authority of India Engineers' Association Vs. International Airport Authority of India, 2002(I) CLR 149 [Para 5]
T. Cajee Vs. Jormanik Siem, AIR 1961 SC 276 [Para 7]
2. The petitioner was recruited with the 1st respondent as an Operator in the year 1982. He was indisposed from 12.1.1988 and, therefore, did not attend his duty from that date upto 4.5.1988. The petitioner's name was struck off from the muster roll w.e.f. 12.1.1988 by the 1st respondent on 29.4.1988. An industrial dispute was raised by the petitioner in respect of his termination from service. A reference was made to the Central Government Industrial Tribunal for adjudication of the dispute. On 27.4.1995, by Award Part-I, the Tribunal held that the services of the petitioner had been illegally terminated. No enquiry had been held against the petitioner prior to termination of his services and, had therefore, the Tribunal permitted the respondent employer to lead evidence to justify its action which it had taken under Regulation 31(2)(vi) of the International Airport Authority of India (General Conditions of Service) Regulations, 1980. By Part-II award dated 5.3.1997 the Tribunal held that the action taken by the respondent No.1 against the petitioner was justified in view of the evidence led before it. However, the termination was held to be effected from 29.4.1988 and not from 12.1.1988.
3. It appears that a purshis was filed on 6.8.1996 on behalf of the 1st respondent by its advocate declining to lead any additional evidence to justify its action and opted to rely on the evidence led prior to the decision in Part-I award.
4. The main contention of the learned advocate for the petitioner is that his services had been terminated under Regulation 31(2)(vi) of the aforesaid Regulations. He submits that the action taken under this regulation has been held to be void by a Division Bench of this Court in the case of International Airport Authority of India Vs. Viru Muthu Sukhlingam & anr. reported in 1993 II C.L.R. 521. The learned advocate points out that the Division Bench has held that the regulations had neither been approved by the Central Government nor published in the official gazette. Any action taken under Regulation 31(2)(vi) had no effect in the eyes of law and that the regulation cannot be relied upon for the purpose of justifying the termination without notice, as held by the Division Bench. The learned advocate submits that the Court has held that assuming Regulation 31(2)(vi) was valid, the termination of an employee under that Regulation cannot be effected without notice. He further submits that it was necessary for the petitioner to be afforded an opportunity of being heard. The Division Bench has held that the regulation itself provides that such a hearing must be given. The learned advocate further submits that once it was held by the Tribunal that the petitioner had not abandoned his services as claimed by the 1st respondent, the Tribunal could not conclude that although the termination was illegal, it was justified. He submits that an opportunity had been given to the 1st respondent by the Tribunal to lead evidence to justify its action, however, the 1st respondent chose to rely only on the evidence which was led before award Part-I was delivered. Therefore, the learned advocate submits, this evidence cannot be relied on by the Tribunal to hold that the action taken against the petitioner was justified as it was necessary for the 1st respondent to lead fresh evidence after having been permitted to do so by the Tribunal. He also relies on the judgment of the learned Single Judge of this Court in Theatre Employees' Union & ors. Vs S. V. Kotnis & ors. delivered in Writ Petition No.2013 of 1983 on 3.12.1991, to contend that since no charge-sheet had been issued to the petitioner, the Labour Court had erred in permitting the employer to lead evidence to establish the alleged misconduct committed by the petitioner for the first time in the Court. He submits that admittedly no charge-sheet was ever issued to the workman and, therefore, the Tribunal had erred in allowing the respondent to lead evidence in Court to justify its action. He then relies on the judgment in the case of Neeta Kaplish Vs. Presiding Officer, Labour Court & anr., reported in (1999)I SCC 517, to buttress his submission that if the respondent No.1 has not led any evidence by availing of an opportunity given by the Tribunal, the Tribunal could not have relied on the material already on record to uphold the action of the 1st respondent in terminating the services of the petitioner. The learned advocate has also brought to my notice the judgment of the Division Bench of this Court in Appeal No.845 of 1998 in the case of Airport Authority of India Vs. G. K. Pandey, delivered on 12.10.2004 where the Division Bench has agreed with the view taken by the earlier Division Bench in Viru Muthu Sukhlingams (supra) case that administrative instructions had not been framed by the1st respondent and that, therefore, till the approval of the regulation by the Central Government they could not be relied upon for the purpose of justifying the termination without notice.
5. The learned advocate for the respondent submits that the Labour Court has committed an error in concluding that the termination of service of the petitioner is legal and justified. He submits that the Labour Court had concluded that the services could not have been terminated under Rule 31(2)(vi) as there was no abandonment of service. He submits that the Labour Court had rightly permitted the respondent to lead evidence afresh to justify the action taken by it. According to the learned advocate, there was sufficient evidence led before the Labour Court before Award Part-I was delivered and, therefore, there was no need for the respondent to lead further evidence to justify the action taken by it. He submits that the evidence indicates that the petitioner had remained unauthorizedly absent and although the absence may not amount to abandonment of service, it nevertheless was a misconduct. The learned advocate submits further that the Labour Court has accepted the action taken by the respondent against the workman w.e.f. 29.4.1988 and not from 12.1.1988 as an order terminating the services of a workman could not be passed with retrospective effect. The learned advocate then submits that Rule 31(2)(vi) has been held to be an administrative instruction under the orders of the Division Bench of this Court in Writ Petition No.1133 of 1992 dated 22.7.2005 between Joaquim Francis Tellis & anr. Vs. The International Airports Authority of India & anr. He submits that prior to this judgment, the Supreme Court has, similarly, while considering the same Regulation upheld the judgment of the High Court that the regulations were administrative in nature since they had not been approved by the Central Government and had not been published in the official gazette. He submits that the question whether the regulations amount to administrative instructions is no longer res integra and further submits that the principles of res judicata apply equally to labour disputes as held by the Supreme Court in the case of Burn & Co. Ltd. Vs. Their Employees reported in 1957(I) L.L.J. SC 226. He then submits that in any event, the workman is not entitled to reinstatement even assuming that there was no voluntary abandonment of service because he had committed a misconduct. He also relies on the judgments in the case of Municipal Corporation of Greater Mumbai Vs. P. S. Malwankar & ors., reported in 1978 Lab.I.C. 1096; Niranjan Cinema Vs. P. C. Dubey & anr., reported in 2008(I) C.L.R. 429 : [2008 ALL SCR 175]; Sarabhai Y. P. Vs. Union Bank of India & anr., reported in 2006(II) L.L.J. SC 1122 : [2006(5) ALL MR 64 (S.C.)]; and of the Patna High Court in the case of The Tata Engineering and Locomotive Co. Ltd., Jamshedpur Vs. the Presiding Officer, Industrial Tribunal, Ranchi and anr., reported in 1980(I) L.L.J. 403.
6. Before considering any other issue, in my opinion, it would be appropriate to consider the effect of the termination of service under Regulation 31(2)(vi) of the International Airports Authority of India (General Conditions of Service) Regulations, 1980. In the case of International Airports Authority of India Vs. Veer Muthu Sukhlingam (supra), the Division Bench has held that the regulations could not be acted upon by the respondent since they have not been approved by the Central Government nor had they been published in the official gazette as required under the law. The Division Bench had, therefore, concluded that a termination of service under this regulation could not be justified if it was effected without notice to the workman.
7. A similar view was taken by another Division Bench in the case of Airports Authority of India Vs. G. K. Pande in Appeal No.845 of 1998. This was an appeal between the same parties which are before me in the present writ petition. After Award Part-I was passed by the Labour Court holding that the action taken by the respondent under Regulation 31(2)(vi) was bad, the respondent challenged the award by filing Writ Petition No.321 of 1998. The learned Single Judge of this Court relied on Viru Muthu Sukhlingam's case (supra) and dismissed the writ petition. Aggrieved by that decision, the respondent filed Appeal No.845 of 1998. The learned advocate for the respondent herein, who was the appellant in the appeal, had relied on the judgment of the Supreme Court in the International Airports Authority of India Engineers Association and ors. Vs. International Airports Authority of India, reported in 2002 I C.L.R. 149 and the judgment in the case of T. Cajee Vs U. Jormanik Siem, reported in AIR 1961 SC 276. The Division Bench agreed with the view taken by the earlier Division Bench in Viru Muthu Sukhlingam's case (supra) and held that the judgments cited by the counsel for the appellants had no application in the facts and circumstances of the case. The Division Bench held thus:-
"4. We are not persuaded by the submissions of the learned counsel for the appellant. Admittedly, the appellant has not framed any administrative instructions or guide-lines pending approval of the Regulations framed under Section 37 by the Central Government. Regulations 1980 framed under Section 36(2)(c) having not been accorded approval by the Central Government cannot be said to have come into effect. The division bench of this Court in the case of Viru Muthu Sukhlingam held thus :
"The Tribunal and the learned Single Judge have both dealt with this aspect in detail and there is really nothing we can usefully add. The reliance placed upon Regulation 31(2)(vi) in support of the submission that it was not necessary to hold an enquiry before ordering terminating is not justified. Section 37 of the International Airport Authority Act, 1971 empowers the appellants to make regulations not inconsistent with the Act and the Rules made thereunder to provide necessary or expedient for the purpose of giving effect to the provisions of the said Act. Without prejudice to the generality of the powers accordingly conferred, such regulations may provide for the conditions of service and the remuneration of officers and other employees appointed by the appellants. Section 38 enacts as follows :-
(1) Any regulation which may be made by the Authority under the Act may be made by the Central Government by notification in the official Gazette within one year of the constitution of the Authority and any regulation so made may be altered or rescinded by the Authority by means of a regulation made by it under this Act.
(2) No regulation made by the Authority under this Act shall have effect until it has been approved by the Central Government and published in the Official Gazette.
It will be seen that the power to make regulations is subject to certain conditions. One of the conditions is that no regulation made by the Authority under the Act shall have effect until it has been approved by the Central Government and published in the Official Gazette. It is not in dispute that the regulations in question have not received the approval of the Central Government and, consequently, there is no publication in the Official Gazette. The regulations have been submitted to the Central Government for their approval and are pending consideration with them. Under these circumstances, in our opinion, the regulations have no effect in the eye of law. They or any of them cannot be relied upon for the purpose of justifying the termination without notice. We agree with the reasoning and conclusion of the Tribunal and the learned Single Judge on this point and reject the submission."
"5. We find ourselves in agreement with the view of the Division Bench judgment of this Court in Viru Muthu Sukhlingam. The judgment cited by the learned counsel has no application. As already indicated above, no power has been exercised by the appellant in framing the administrative instructions under Section 10(1) of the Act, of 1971."
Thus, in my opinion, it can no longer be argued on behalf of the respondent No.1 that its action taken under Regulation 31(2)(vi) was legal and justified. The reliance placed by the learned advocate for the respondent on Joaquim Francis Tellis & anr. Vs. International Airports Authority of India (supra) is not of any consequence. The Division Bench has already held while dealing with the Award Part-I in the present case that the findings of the Labour Court that the action taken under Regulation 31(2)(vi) was illegal has been upheld.
8. The learned advocate for the petitioner submits that the Labour Court had permitted the respondent No.1 to lead evidence to support its action. However, the respondent No.1 instead of leading any evidence in the matter, submitted a purshis contending that it did not want to lead any further evidence in the matter and relied on the evidence of Avinash Kumar Taneja for the management which had been led before Award Part-I was passed. The learned advocate submits that the Labour Court could not have considered this material on record without the management leading cogent evidence to justify its action. The learned advocate has sought to draw an analogy between the evidence led at a defective enquiry and the evidence led before the Labour Court prior to Award Part-I. He submits that just as in a case where the material on record in respect of a defective enquiry cannot be considered by the Court, once evidence is permitted to be led before it, the Labour Court could not have, in the present case, considered the evidence led before it prior to the Award Part-I, after giving the management an opportunity to lead evidence to justify its action.
9. A perusal of the evidence on record which, according to the Labour Court, indicates that the workman had committed a misconduct, does not in any manner support this finding. An affidavit of the Personnel Manager was filed in lieu of the examination-in-chief on behalf of the respondent. He has joined service in 1991. The services of the workman were terminated in 1988. Thus, this witness had no personal knowledge of the incident leading to the termination of the services of the petitioner. In para 6 of the affidavit filed in lieu of examination-in-chief, the witness has categorically stated as under :
"I say that the management did not cast any aspersion on the workman, as his action was not construed as a misconduct and therefore the question of issuing a charge-sheet, seeking explanation and holding an enquiry did not arise. The management did not follow the said procedure, as it did not condemn the workman for committing any misconduct; but it honestly felt in the light of the circumstances that the workman was not interested in employment and left the job of his own accord."(Emphasis supplied)
With this categorical statement on record, the Labour Court in Award Part-I had held that the services of the workman were illegaly and invalidly terminated. However, in Award Part-II the Labour Court has taken a contrary view and held that the workman had abandoned the services. The Labour Court also held that the action of the management i.e. the respondent No.1 herein, in terminating the services w.e.f. 12.1.1988 was legal and justified. Abandonment of service by a workman is antithetical to the termination of service by the employer. Both circumstances cannot co-exist. If the workman has abandoned his service, then there would be no necessity for the employer to terminate his service. In the event the employer terminates the services of a workman, the question of the workman having abandoned his services would not arise. Thus, the two findings arrived at by the Court are inconsistent and in terms contradictory. The Labour Court had already in Award Part-I held that the termination of the services of the workman was illegal and invalid, therefore, it could not thereafter in Award Part-II conclude that the workman has abandoned his services. In fact, the Labour Court in Award Part-I has permitted the employer to justify its action in terminating the services of the workman on the ground of misconduct. The employer has chosen not to lead any evidence for reasons best known to it. It has instead relied on the evidence led prior to the Award Part-I. It is inconceivable how the Labour Court, after arriving at a finding on the basis of that evidence that there was an illegal termination of service, could have, on the basis of the same evidence, conclude that the workman had abandoned his services. In fact, the Labour Court has wrongly framed the issue whether the workman had abandoned his services. Once it had held by Award Part-I that the services had been illegally terminated, there was no need to frame the issue as to whether the workman had abandoned his services. The Labour Court ought to have framed issues regarding the nature of the misconduct allegedly committed by the petitioner and whether the management had proved the same.
10. It is not possible to subscribe the view that the evidence led prior to the rendering of Award Part-I would stand on the same footing as the evidence led in a defective enquiry as submitted by the learned advocate for the workman. However, the evidence in the present case does not in any manner indicate that the workman had committed any misconduct. As aforesaid, the witnesses for the respondent had, in fact, admitted that there was no misconduct on the part of the workman and that, therefore, there was no need of either charge-sheeting him or holding an enquiry against the workman. In these circumstances, in my opinion, the Award Part-II of the Labour Court is unsustainable and must be set aside.
11. It is not necessary for me to consider the question as to whether the Labour Court ought to have granted permission to the management to lead evidence after Award Part-I is delivered in order to justify its action. This is because Award Part-I has been upheld by this Court in Appeal No.845 of 1998. The management has chosen not to lead any evidence in the matter. Therefore, the judgment relied on by the learned advocate for the workman in the case of Theatre Employees Union & ors. Vs. S. V. Kotnis & ors. (supra), need not be considered. The judgment in the case of Neeta Kaplish Vs. Presiding Officer, Labour Court & anr. (supra) also need not detain me in view of the facts and circumstances of this case.
13. The submission of the learned advocate for the respondent No.1 that it would not be possible for the respondent No.1 to reinstate the petitioner in view of the agreement between the Airports Authority of India and Mumbai International Airport Pvt. Ltd., is unacceptable. The petitioner will be treated in the same manner as other workmen who are today working with the Airports Authority of India.
14. As regards the back wages, the evidence led by the workman indicates that he made several attempts to get alternative employment and that he had no independent source of maintenance. The workman in his cross-examination has stated that he resides at his native place in Uttar Pradesh and returns to Mumbai only for attending the reference in Court. He has also stated that, his brother has spent for his journeys, to and fro. A suggestion was put to the workman that he had agricultural income and was therefore able to survive during the pendency of the litigation. The workman has denied the suggestion and instead has stated that he had no agricultural income. The employer's witness has admitted in his cross-examination that he was not aware as to whether the workman has a share in the joint family property i.e. agricultural land. He was not aware whether the workman derived any income from that property and has further admitted that the income mentioned by him in the affidavit in lieu of examination-in-chief is imaginary.
15. In my opinion, this is a fit case to remand the matter to the Labour Court to decide whether the back wages and consequential benefits are payable to the workman from 29.4.1988 i.e. the date of termination to the date of reinstatement in service.