J.H. PATEL (D) BY LRS. AND ORS.versusNUBOARD MANUFACTURING CO. LTD. & ORS.

                    [2014) 1 S.C.R. 773


           J.H. PATEL (D) BY LRS. AND ORS.                      A
                             v.
     NUBOARD MANUFACTURING CO. LTD. & ORS.
          · (Civil Appeal No. 1762 of 2007)
                    JANUARY 22, 2014
                                                                B
      [H.L. GOKHALE AND KURIAN JOSEPH, JJ.]

    Labour Law:

    Uttar Pradesh Industrial Disputes Act, 1947:                c
     s.6-E(2)(b) - Misconduct - Dismissal - Prior approval
from Labour Court during pendency of proceedings - Held:
Since earlier proceedings were pending, Management was
required to obtain prior approval from Labour Court- However,
failure to do so will not disentitle the Management from        D
proving the misconduct in court - Industrial Disputes Act,
1947 - s.32(2)(b).

     Dismissal from service - Misconduct - Complaint by
workmen against officers of company - Officers acquitted - E
Charge-sheet against workmen that they filed false case
against officers of company - Workmen dismissed from
service - Held: There is no discussion whatsoever about the
evidence as to why Labour Court came to conclusion that the
misconduct is established - In the circumstances, finding of F
Labour Court that management had proved the misconduct
cannot be sustained - Therefore, workmen were entitled to
declaration that termination of their services was bad in law
and for consequential relief- Workmen are entitled to award
of compensation towards back-wages quantified at 50%, with G
interest at 6% per annum, from the date of dismissal until the
date of superannuation/death, whichever is earlier -
Principles of natural justice.

    Three appellants-workmen on being elected as the
                         773                                    H
    774      SUPREME COURT REPORTS             [2014) 1 S.C.R.

A General Secretary, the Organizing Secretary, and the Vice
  President of the Karmachari Sangh were declared as
  "protected workmen" of the respondent-employer. On
  10.4.1977, when the General Secretary was collecting
  subscription from the members of the Union, the
B subscription which he had collected and the Receipt
  Book were snatched away from him. He went to the Police
  Station to lodge a complaint, but his complaint was not
  recorded. He then filed a criminal complaint before the
  Magistrate concerned. In that complaint, there were four
c accused, including the Director and the Administrative
  Manager. However, the complaint was not proved, and
  the Magistrate by his judgment and order dated 29.6.1978
  acquitted all the four accused. Thereafter, the
  management served a charge-she'et dated 15.7.1978 on
  the three workmen stating that they had lodged a report
0
  to the Superintendent of Police containing false
  allegations against four officers of the management. The
  workmen filed an explanation. However, no inquiry was
  held and an order of dismissal was passed on 17.7.1978
E stating that no further inquiry in the matter was called for
  and the copy of the judgment of the Special Judicial
  Magistrate "speaks for itself." The workmen challenged
  their dismissal before the Labour Court, which accepted
  the case of the management with respect to the
  misconduct of the workmen, but held that no inquiry was
F held at the departmental level prior to the order of
  dismissal, and, thus, there was denial of the principles of
  natural justice and fairness. However, it declined
  reinstatement, and passed the order granting 50% of the
  back-wages from the date of dismissal until the date of
G judgment and order passed by the Labour Court i.e.
  31.3.1981. The single Judge of the High Court held the
  removal of the workmen as justified, and set aside the
  order of the Labour Court granting back wages.

H         Allowing the appeal in part, the Court
  J.H. PATEL (D) BY LRS. AND ORS. v. NUBOARD             775 ·
            MANUFACTURING CO. LTD.
     HELD: 1. As far as the issue of non obtaining prior A
approval is concerned, inasmuch as s.6(E)(2)(b) of the
Uttar Pradesh Industrial Disputes Act is pari passu to s.
33(2)(b) of the Industrial Disputes Act, 1947, and since the
earlier proceedings were pending, the management was
required to obtain the prior approval from the Labour B
Court. However, the consequence thereof cannot be that.
the management will be disentitled to prove the
misconduct in court. [para 10] [780-D-F]

     Rajasthan State Road Transport Corporation & Anr. Vs. C
Satya Prakash 2013(2) SCR 939 = (2013) 9 SCC 232, Jaipur
Zila Sahkari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma
                           =
and Ors. 2002(1) SCR 284 (2002) 2 sec 244 - relied on.
     2.1. The judgment of the Labour Court does not
contain any reason in support of the conclusion arrived D
at by it that the misconduct was proved on the basis of
the evidence which was led before it. The management
chose to proceed departmentally against the workmen
after the acquittal of its officers in the criminal court. It did
not afford any opportunity to the workmen at the E
departmental level. Afterwards, when the dispute was
taken to the Labour Court, it was the responsibility of the
management to prove the misconduct in court, and that
ought to be done by leading evidence of the witnesses
which, of course, they did. There is no discussion·. F
whatsoever about the evidence as to why the Labour
Court came to the conclusion that the misconduct is
established. In the circumstances, the finding of the
labour Court cannot be sustained that the management
had proved the misconduct. Therefore, the workmen
were entitled to the declaration that termination of their G
services was bad in law and the consequential relief.
[para 11] [781-B-FJ
    2.2. This Court holds that termination of services of
workmen was unjustified on merits. The orders of the             H
    776      SUPREME COURT REPORTS               [2014) 1 S.C.R.


A High Court and the Labour Court are set aside. The
  workmen are entitled to award of compensation 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. [para 12-13]
B [781-G; 782-B]

                          Case Law Reference:
          2013(2) SCR 939         relied on            para 10

          2002(1) SCR 284         relied on            para 10
c
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    1762 of 2007.

         From the the Judgment & Order dated 23.05.2003 of the
    High Court of Judicature at Allahabad in Civil Misc. Writ
0
    Petition Nos. 9498 and 10321 of 1981.

          R.D. Upadhyay for the Appellants.

      Sunny Chaudhary (for C.D. Singh), V.N. Raghupathy for the
E Respondents.

          The Judgment of the Court was delivered by

       H.L. GOKHALE, J. 1. This appeal seeks to challenge the
  common judgtnent and order dated 23.5.2003 rendered by the
F High Court of Allahabad in Writ Petition i~o.9498of1981 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
G dismissed. Both these writ petitions sought to challenge the
  award dated 31.3.1981 passed by the 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
H respondents.
  J.H. PATEL (D) BY LRS. AND ORS. v. NUBOARD                 777
   MANUFACTURING CO. LTD. [H.L. GOKHALE, J.]
     2. The facts leading to this appeal are this wise. One Mr.     A
J.H. Patel, was elected on 8.5.1996 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 Majdoor Panchayat.
One Mr. Ram Kishan was the Organizing Secretary and Mr.             B
Asha Ram was the Vice President of the said Karnachari
Sangh. It is the further case of the workmen that on 20.8.1977
they wrote to the Registrar of the Trade Unions, U.P. at Kanpur
to declare their office bearers, including the above three
persons, as the "protected workmen", and they were so               c
declared by the Registrar of Trade Unions by his letter dated
15.2.1978.

     3. It is the case of the workmen that on 10.4.1977, after
the formation of the Trade Union, when the aforesaid J.H. Patel
was collecting subscription from the members of the Union, he       D
was called to the office of the employer, and was told to refrain
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             E
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              F
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
including the aforesaid two officers of the respondent Company.     G

     4. Thereafter, the management of the respondent
Company chose to serve a charge-sheet dated 15. 7.1978 on
the concerned workmen. In the said charge-sheet, essentially
the charge was that the workmen concerned had lodged a              H
    778     SUPREME COURT REPORTS                  [2014] 1 S.C.R.

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
B explanation, no inquiry was held and an order of dismissal was
  passed on 17.7.1978. In fact the order dated 17.7.1978 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
c that basis the dismissal order was 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
D workmen. Firstly, that they were "protected workmen" and
  action against them was not justified. Secondly, 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
E 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
F 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
G 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.
H Hence, although it declined reinstatement, it passed the order
  J.H. PATEL (D) BY LRS. AND ORS. v. NUBOARD                  779
   MANUFACTURING CO. LTD. [H.L. GOKHALE, J.]
granting 50% of the back-wages from the date of dismissal until       A
the 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       B
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          C
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.
                                                                      D
     8. Mr. 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 their level, and it was their responsibility
to prove the misconduct, firstly at the departmental level and if     E
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           F
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.
                                                                      G
    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
respondentCompany in the Magistrate's Court. This damaged
the reputation of the Company, and this amounted to                   H
    780     SUPREME COURT REPORTS                  [2014] 1 S.C.R.


A 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 to 'disorderly
  behaviour' and although the management had passed the
  dismissal order merely on receiving the explanation from the
B 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
c 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.

       10. We have noted the submissions of both the learned
D 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
E 32(2)(b) of the Industrial Disputes Act, 1947, undoubtedly the
  management was required to obtain the prior approval from the
  Labour Court 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
F misconduct in Court. This has been the view taken by this Court
  in Rajasthan State Road Transport Corporation & Anr. Vs.
  Satya Prakash, (2013) 9 SCC 232, which explains the law laid
  down earlier by a Constitution Bench of this Court in Jaipur Zila
  Sahkari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and
G Ors., (2002) 2 sec 244. Therefore, the management cannot
  be faulted merely on that ground.

        11. The fact, however, remains that the opportunity to prove
    the misconduct was made available to the management in the
    Labour Court in the present case. The employer examined two
H
  J.H. PATEL (D) BY LRS. AND ORS. v. NUBOARD                  781
   MANUFACTURING CO. LTD. [H.L. GOKHALE, J.]
of their witnesses, namely Mr. A.H. Shah, Director (EW-1) and         A
Mr. J.B. Dalal, Administrative Officer (E-2). However, from the
judgment rendered by the Labour Court what we find is that
there is no discussion, whatsoever, with respect to the evidence
led by these two witnesses. The judgment does not contain any
reason in support of the conclusion arrived at by the Labour          B
Court that misconduct was proved before the Labour Court on
the basis of the evidence which was led before it. The
management chose to proceed departmentally against the
workmen after the acquittal of its officers in the Criminal Court.
It did not afford any opportunity to the workmen at the               c
departmental level. Afterwards, when the dispute was taken to
the Labour Court, it was the responsibility of the management
to prove the misconduct in Court, and that ought to be done by
 leading evidence of the witnesses which, of course, they did.
However, the evidence has to be discussed by the Labour               D
Court. In the present case, there is no discussion whatsoever
about the evidence as to why the Labour Court came to the
conclusion that the misconduct is established. In the
circumstances, the findings of the Labour Court cannot be
sustained that the management had proved the misconduct.
Inasmuch as the misconduct was not proved, the workmen were           E
entitled to get the relief that they were seeking, namely the
declaration that the termination of their services was bad in law
and then the consequential relief. When the matter was carried
to the High Court, the High Court also lost sight of that fact and,
on the other hand, it deleted whatever compensation was               F
awarded to the workmen by the Labour Court. In our view, the
order of the High Court is erroneous on the very ground.

     12. In the circumstances, this appeal will have to be
allowed which we hereby allow, set aside the order of the High        G
Court as well as that of the Labour Court and decide the dispute
raised by the workmen 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
                                                                      H
    782     SUPREME COURT REPORTS                 [2014) 1 S.C.R.

A appellants before this Court, J.H. Patel has expired and his
  heirs are on record. Mr. Upadhyay does not dispute that as far
  as the other two workmen Mr. Asharam and Ram Kishan are
  concerned, they must have reached the age of superannuation.
  In the circumstances, we award compensation to these
B workmen 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.

        14. At this stage, on instructions, Mr. Chaudhary, learned
C counsel appearing for the respondents states that the first
  respondent Company is no longer functioning, and a
  proceeding is pending before the BIFR. He therefore makes a
  request that the. back-wages be reduced to 40% and no
  interest be awarded thereon. Mr. Upadhyay learned counsel for
  the appellants submits that the appellants are agreeable to this
D suggestion provided the said amount is paid within a period
  of three months hereafter. In the circumstances, we give this
  option to the first respondent viz to pay 40% of the back-wages
  from the date of dismissal until the date of superannuation/
  death, whichever is earlier provided the amount is so paid
E within three months. If the compensation is so paid, the amount
  of interest will stand waived. In the event, however, the amount
  of 40% is not paid within a period of three months hereafter,
  the earlier part of the order, namely that respondent No.1 should
  pay 50% of the back-wages with 6% interest will be operative.
F
        15. Appeal allowed in the above terms, though without any
    order as to costs.
    R.P.                                   Appeal partly allowed.