Judgment:
H. K. Rathod, J.
1. Heard learned Advocate Ms. Vasavdatta Bhatt for the Corporation and Mr. Pathak for the workman.
2. By filing Special Civil Application No. 10503 of 1996, the Corporation has challenged the award made by the labour Court, Surat in Reference No. 319 of 1993 dated 21st July, 1996 wherein the labour Court concerned has granted fresh employment to the respondent workman on the post of peon and has not granted backwages to the respondent for intervening period and has also denied continuity of service. Same award made by the labour Court concerned has also been challenged by the workman concerned by filing Special Civil Application No. 673 of 1997 insofar as it relates to denial of backwages for the intervening period and continuity of service.
3. Special Civil Application No. 10503 of 1996 was admitted by this Court on 7th April, 1997. Special Civil Application No. 673 of 1997 was admitted by this Court on 7th April, 1997.
4. Learned Advocate Ms. Bhatt for Corporation has submitted that the labour Court has committed gross error in coming to the conclusion that the punishment of dismissal is harsh and unjustified. She has further submitted that the respondent workman has remained absent from 21-6-1991 and in spite of two notices served upon him, he remained absent and no reply has been given by the respondent upto 2nd October, 1991. Therefore, after completion of the departmental inquiry, the respondent-workman was dismissed from service on 18th February, 1992. Charge-sheet was served upon the workman concerned on 10th October, 1991. No reply was given and even in the departmental inquiry also, he remained absent and the show-cause notice was served upon the workman on 16th D/ecember, 1991 but no reply was given and ultimately, having no option, the workman was dismissed from service. She has submitted that for remaining absent for a period of about four months, no explanation has been tendered by the respondent, and therefore, in view of such serious misconduct to remain absent without prior permission, he was dismissed from service, and therefore, the labour Court has committed gross error in granting reinstatement in granting relief in favour of the workman. She has submitted that in past, 54 defaults were committed by the respondent and the default card was produced before the labour Court. However, the labour Court has ignored the default card and has granted relief in favour of the workman. According to her, in view of the misconduct of remaining absent without prior permission and also in view of the past record of the workman, the labour Court ought not to have exercised the powers in favour of the workman concerned. According to her, the workman is not entitled for any relief, and therefore, the award in question made by the labour Court is required to be quashed and set aside.
5. Learned Advocate Mr. Pathak for the workman has submitted that the labour Court was right in exercising the powers under Section 11-A of the Industrial Disputes Act, 1947. He has submitted that the act of delinquency of remaining absent for a period of about four months cannot be considered to be serious misconduct, and therefore, for such a misconduct, punishment ought to have been imposed by the disciplinary authority looking to the gravity of misconduct, and therefore, the labour Court has rightly exercised the powers under Section 11-A of the Industrial Disputes Act, 1947. He has submitted that the Labour Court has not granted reinstatement in favour of the respondent-workman on the post of conductor but on the post of peon but his real grievance is about the denial of backwages and continuity of service. He has submitted that the labour Court has committed error in not granting backwages and continuity of service. He has submitted that before the labour Court, it has not been proved by the petitioner corporation that in view of the absence of the workman, any loss has been suffered by the Corporation or any dislocation has taken place. He has further submitted that the labour Court ought to have granted continuity of service.
6. I have considered the submissions made by the learned Advocates for the parties. The workman was working as a conductor and he remained absent with effect from 21st June, 1991 to 2nd October, 1991 and all through remained absent even during the course of departmental inquiry, and thereafter, he was dismissed from service by order dated 18th February, 1992. Industrial dispute raised by the workman was referred to for adjudication on 28th October, 1993. Before the labour Court, statement of claim was filed by the workman at Exh. 9 and reply thereto was submitted. By filing purshis at Exh. 10, the respondent workman has admitted the legality, validity and propriety of the departmental inquiry and has foregone claim of back wages. Either side has not led any oral evidence before the labour Court. Thereafter, the labour Court has examined the question of punishment. Keeping in view the gravity of misconduct committed by the workman, the labour Court has considered the purshis at Exh. 10 submitted by the workman and has granted reinstatement as a fresh employee in the category of peon and has not granted backwages for intervening period or continuity of service.
7. The question is that the labour Court has examined gravity of misconduct and has considered the well known decision of this Court in case of Sardarsing Devising v. D.S.P., Sabarkantha, 1985 (2) GLR 1368 and has granted fresh employment on the post of peon. In view of the purshis Exh. 10, back wages were denied. Ms. Bhatt has submitted that the past record, though produced, was ignored by the labour Court wherein 54 defaults were committed by the workman but no observations to that effect have been made by the labour Court, and, therefore, the labour Court has erred in ignoring the past record and in making the award in question. For appreciating this contention raised by Ms. Bhatt, it is required to be examined whether the past record can be considered to be material on record as required under Section 11-A of the I. D. Act or not. The labour Court is supposed to consider only the material which is on record and the other documents like fresh evidence cannot be considered by the labour Court. This has been made clear by the Statutory provisions itself. Section 11-A of the Act is required to be considered for that purpose. Same is, therefore, reproduced as under :
'11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication, and in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require;
Provided that in any proceedings under this Section, the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.'
Thus, upon bare reading of the proviso to Section 11-A, it is clear that the Labour Court, Tribunal or the National Tribunal shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. For appreciating the contention raised by Ms. Bhatt, the phrase 'shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter' is required to be considered. If, it would have been the intention of the legislature to keep it open for the labour Court, tribunal or the national tribunal, then, the legislature would not have worded the Section by using such phrase. In the said phrase, the legislature has used the word 'shall'. In view of this clear-cut mandate of the legislature, it is not open for the labour Court to rely on the material which is not on record. For appreciating this contention, I myself have perused the show-cause notice issued by the competent authority to the workman concerned. I have also perused the final order or the decision taken by the competent authority to dismiss the workman. Upon perusal of the show-cause notice as well as the order of punishment issued by the competent authority, it appears that the competent authority has not referred to the past record of the workman and the past record has also not been relied upon by the competent authority for imposing punishment of dismissal. Thus, it is clear that the past record was not forming part and parcel of the record before the disciplinary authority or the competent authority in the departmental proceedings. Therefore, it cannot be said to be the material on record since it was not forming part and parcel of the papers of inquiry against the respondent. Once, when the past record has not been relied upon by the competent authority while issuing the show-cause notice or while passing the order of punishment, then, the labour Court cannot examine or consider the same under Section 11-A of the Industrial Disputes Act, 1947 even if it was produced before the labour Court in pending reference and can ignore the same while considering and deciding the reference on merits. Said view has been taken by the Andhra Pradesh High Court in case of A.V. Swamy v. Industrial Tribunal-cum-Labour Court, Warangal and Ors., reported in 1991 (2) LLJ 430. The Andhra Pradesh has considered the question as to whether the past record of service comes within the category of material on record for the purpose of case. It has been observed that the past record of service was neither considered nor referred to by either the workman or the second respondent-Corporation at the time of inquiry but the past record of service has been considered in detailed fashion by the labour Court while coming to the conclusion that the order of removal is justified in the circumstances of the case. It has been observed by the Andhra Pradesh High Court that the approach of the labour Court was clearly wrong and not justified by the proviso to Section 11-A of the Act. It has been observed that the Labour Court ought to have come to the conclusion only on the basis of the material on record and not by taking into consideration the past record of service. Relevant observations made in Para 5 of the said judgment are reproduced as under :
'5. An analysis of this Section shows that if the Labour Court is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman or give such of the relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal, as the circumstances of the case may require. The proviso to the said Section is extremely important for the purpose of the case on hand which reads that in any proceeding under this Section, the Labour Court shall rely on the materials on record and shall not take any fresh evidence in relation to them latter. Therefore, the question is whether the past record of service conies within the category of 'material on record' for the purpose of this case. It is an undisputed fact that the past record of service was neither considered nor referred to by either the workman or the second respondent-Corporation at the time of enquiry against the petitioner. But the past record of service has been considered in a detailed fashion by the labour Court while coming to the conclusion that the order of removal is justified in the circumstances of the case. In fact, about three full pages have been written about the past record of the petitioner. This past record of service is evidently not material on record as visualized in the proviso to Section 11-A. Therefore, the question is, would the tribunal have come to the same conclusion, viz., that the order or removal is justified had it not looked into the past record of the petitioner. Suffice it to state that from the manner in which the award has been passed, it is easy to see that a lot of emphasis has been placed on the past record of service of the petitioner. The approach of the Industrial Tribunal was clearly wrong and not justified by the proviso to Section 11-A. The Labour Court should have come to the conclusion that the order of removal is justified only on the basis of the appreciation of the material on record and not by taking into consideration the past record of service of the petitioner. In this view of the matter, the award dated April 3, 1987 passed by the Labour Court in I. D. No. 141 of 1986 is set aside and the matter is remanded to the Industrial Tribunal for fresh consideration in accordance with the provisions of Section 11A of the Industrial Disputes Act, especially the proviso to the said Section, by taking into consideration only the materials on record and not the past record of service of the petitioner. The Labour Court may consider the matter and pass an award within two months from the date of receipt of this order.'
Therefore, in view of the proviso to Section 11-A of the Act and also in view of the decision given by the Andhra Pradesh High Court and also in view of the fact that the competent authority has not considered the past record while issuing the show-cause notice and while imposing the punishment of dismissal, the Labour Court was right in not considering the past record of the workman concerned as it was not forming part and parcel of the material on record and was produced before the labour Court for the first time. Therefore, the contention raised by Ms. Bhatt in that regard is rejected.
8. The second contention raised by Ms. Bhatt is to the effect that the respondent workman was facing the charge of remaining absent for a period of four months without obtaining prior permission and no explanation has been submitted for such period of absence, and therefore, the misconduct can be considered to be serious misconduct, and therefore, the labour Court was not justified in interfering with such order of punishment. While considering this aspect, the labour Court has considered the decision of this case in case of Sardarsinh Devisinh (supra) and has considered that the respondent is a scheduled tribe employee and in view of the dismissal from service, he has not been able to maintain the family, and therefore, he submitted the purshis that if he is reinstated in service, then, he will not be claiming backwages. In view of these facts, as well as the material on record, the labour Court has considered the case of the respondent-workman that the punishment of dismissal from service is harsh and unjustified because the misconduct of remaining absent cannot be considered or equated with the misconduct of dishonesty and misappropriation. Therefore, the labour Court was right in exercising the powers under Section 11-A of the Industrial Disputes Act, 1947 and granted only re-employment on the post of peon without back wages and in doing so, the labour Court has not committed any error while passing such award.
9. Learned Advocate Mr. Pathak for the workman has submitted that in view of the purshis filed by the workman before the labour Court waiving his right to claim backwages, he is not pressing into service that contention before this Court. He has, however, submitted that the labour Court has erred in not granting continuity of service while making the award of re-employment on the post of peon. He has submitted that the respondent has been serving since 1974 and at the relevant time, had already completed the service of about 18 years in view of the award of re-employment and/or fresh appointment as a peon without continuity of past service, he will be losing the past service of about 18 years and will also be losing the increments which were earned by him during the past service of about 18 years. He has submitted that once the re-appointment or fresh appointment has been granted, then, continuity of service must be given and this continuity of service cannot be denied, as otherwise, it would amount to fresh employment on the peon's post, and therefore, he has urged to grant continuity of service for protecting the past service and last salary of the respondent-workman.
10. I have considered the submissions made by both the learned Advocates on this point. Ms. Bhatt has objected the contention that the continuity should be given. She has submitted that the workman who has committed 54 defaults in past is not entitled for any continuity of service, and therefore, such a prayer made by the workman has no merits and the same is required to be rejected.
11. After considering the submissions made by both the learned Advocates, according to my opinion, when the labour Court has modified the order of punishment, and has ordered for employing the workman on the post of peon, then, the labour Court ought to have granted continuity of service. Such view has been taken by this Court in Special Civil Application No. 13758 of 1993 decided on 7th March, 2002 wherein this Court has considered the decision of the Apex Court in case of Sanat Kumar Dwivedi v. Dhar Jilla Sahakari Bhoomi Vikas Bank Maryadit and Ors., reported in 2001 AIR SCW 2430. In Para 3 of the said decision, the Apex Court has observed as under :
'3. It is clarified that this order will not be treated to be resulting in any break in service of the appellant. He will be deprived of only the back wages. The continuity of service and all other notional benefits on that basis will be available to him. It appears that when the order of reinstatement was granted, except depriving him of backwages, it necessarily meant that the continuity of service was implicit in the reinstatement. Even condition Nos. 1 and 2 of the order of reinstatement clearly indicate that he is reinstated in service with continuity as pay-scales and other benefits were also directed to be given.'
12. Similarly, this Court has also examined this aspect in case of Vasantika R. Dalia v. Baroda Municipal Corporation reported in 1997 (3) GLR 1879 : 1998 (I) CLR 32. In Para 2 of the said judgment, it has been observed by this Court as under :
'2. The present petitioner-workman had also filed Special Civil Application No. 5497 of 1998 contesting for the backwages and consequential reliefs and thus, Special Civil Application filed by the workman was dismissed and the notice was discharged. The award dated 28-3-1988 as aforesaid thus attained the finality. It appears that this award dated 28-3-1988 granting relief of reinstatement to the workman was not implemented by the respondent-Corporation, and therefore, a Miscellaneous Civil Application No. 655 of 1988 in the nature of contempt application had been filed by the petitioner workman and thus Misc. Civil Application No. 655 of 1988 was decided by the Division . Bench while noticing the statement of learned Counsel Mr. P. G. Desai for the respondent that it had complied with the direction given by the Labour Court inasmuch as the petitioner has been reinstated in service. The Division Bench has also observed that there was some delay in reinstating the petitioner on the original post and, therefore, the statement of Mr. Desai was also noted that the wages for the period for which the delay had been caused in complying with the direction will be paid to her on or before 12-10-1990. In view of this statement, the Division Bench found that the application did not survive and the same was disposed of as having become infructuous. In this background, the dispute has now precipitated between the parties about the continuity of service, i.e. from January, 1977 to 23-8-1988 when she was reinstated on the basis of the award dated 28-3-1988. The Assistant Municipal Commissioner, 5th Zone, Baroda has passed an order that all the grievances of the petitioner were included in Special Civil Application No. 5497 of 1988 and this Special Civil Application had been rejected on 18-6-1992, and therefore, her request for granting continuity of service cannot be entertained. This order dated 30-10-1996 passed by the Assistant Municipal Commissioner, 5th Zone, Baroda is under challenge in this petition. Though, it is mentioned in the award dated 28-3-1988 that the relief of reinstatement is granted while denying the backwages, nothing has been said in the positive terms with regard to the continuity of service or otherwise but the fact remains that the relief of continuity has not been denied by any specific mention as has been done for the backwages. Thus, the petitioner may have failed before the Division Bench in getting the relief of backwages for the intervening period but that does not mean the forfeiture of the continuity of the service because it is not a case of denying the continuity of service by and positive penal order. The rejection of the petitioner's special civil application no. 5497 of 1988 on 18-6-1992 only means that her claim for the backwages was not accepted by this Court nor it can be said on the basis of the order passed in Miscellaneous Civil Application No. 655 of 1988 on 28-9-1990 that everything due to the petitioner under the award had been given in facts of a given case. If the Court comes to the conclusion that the contempt proceedings are not warranted, the Court may not proceed to initiate the contempt proceedings but the mere fact that the Court does not initiate the contempt proceedings does not mean that the rights of the party if they are otherwise available to her on the basis of the award passed after adjudication would come to an end. An order of action may not be contemptuous per se, still it may be illegal order. However, every illegal order may not be a contemptuous order, and therefore, the rejection of the application in the nature of seeking contempt proceedings would not impeach upon otherwise illegal order or action. In this view of the matter, in my considered opinion, neither the rejection of the petitioner's special civil application No. 5497 of 1988 on 18-6-1992 nor the rejection of Misc. Civil Application No. 655 of 1988 in the nature of contempt proceedings on the ground of being infructuous by the Division Bench comes in the petitioner's way for claiming relief of continuity of service on the strength of the award dated 28-3-1988, if at all it is available to her on the basis of that award itself. It is, therefore, plain and simple case of interpretation of the relief granted by the Labour Court while passing the award dated 28-3-1988. By this award, the relief of reinstatement has been granted but the relief of backwages has been denied specifically and the relief of continuity of service has not been denied in any terms except that although the relief of reinstatement the word 'continuity' has not been mentioned. It may be straightaway observed that once the relief of reinstatement is granted, the continuity of service is the direct consequence rather inherent in the relief of this nature, more particularly when the Division Bench has already held that the termination was void. If the termination order was void, the meaning that in the eye of law, the relief of reinstatement has to be granted as if the impugned award had never been passed. The question of back wages, is therefore, dependent on variable factors of gainful employment during the period of enforced idleness, and therefore, in a given case, the relief of back wages may not be granted depending upon the finding on the question of gainful employment or otherwise during the period of enforced idleness. When the relief of reinstatement is granted and the continuity of service is not specifically denied, the party has to be regulated to the same position as was held by it at the time of termination. When the order of termination has been found to be void, the petition holds the relief of reinstatement with no mention of specific denial of continuity of service, the concerned workman has to be regulated to the position which was obtaining at the time of termination of her services and there is no question of denying the continuity of service for the period for which the services have been interrupted on account of an unlawful and void order.'
13. Recently, the Apex Court has considered the same question in case of Gurpreet Singh v. State of Punjab and Ors., reported in 2002 (92) FLR 838. The relevant observations made by the Apex Court in 1 and 2 of the said judgment are reproduced as under :
'Leave granted.
The Plaintiff is in appeal against the impugned judgment of the High Court of Punjab and services stood terminated and he filed the suit for declaring the order of termination null and void. The suit was dismissed. The lower appellate Court, however, on re-appreciation of the materials on record, came to the conclusion that the order passed by the D.I.G. must be held to be illegal and consequently directed that the plaintiff should be reinstated in service. Having directed so, the first appellate Court categorically held that the plaintiff will not be entitled for any arrears of salary for the period for which he has not served. The plaintiff assailed the appellate decree by filing a second appeal claiming that he would be entitled to the arrears of salary. The High Court by the impugned order not only confirmed the decree of the lower appellate Court that the plaintiff will not be entitled to any arrears of salary but also further added that the plaintiff will not get his continuity of service. The plaintiff therefore is in appeal before this Court.
2. Having heard the learned Counsel for the parties and on examining the '' materials on record, we fail to understand how the continuity of service could be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment but it is a case of reinstatement. That being the position, direction of the High Court that the plaintiff will not get continuity of service cannot be sustained and we set aside that part of the impugned order. So far as the arrears of salary is concerned, we see no infirmity in the direction which was given by the lower appellate Court taking into account the facts and circumstances including the fact that the suit was filed after a considerable length of time. That part of the decree denying the arrears of salary stands affirmed and this appeal stands allowed in part to the extent indicated above.'
Therefore, in view of the observations made by the Apex Court in two cases as aforesaid and one by this Court as aforesaid, and also considering that the respondent-workman was having 18 years past service at the relevant time, and he was given alternative post of peon, as per the award of the labour Court, therefore, according to my opinion, the labour Court has committed an error in not granting the continuity in favour of the workman while ordering for alternative post of peon and therefore, to that extent, award made by the labour Court is required to be modified.
14. For the reasons recorded hereinabove, Special Civil Application No. 673 of 1997 filed by the workman concerned is partly allowed with a modification that the respondent is reinstated in service on the post of peon with continuity of service and is not entitled for backwages for the intervening period. Rest of the award made by the labour Court has not been disturbed. Rule is made absolute in terms indicated hereinabove with no order as to costs.
15. Special Civil Application No. 10503 of 1996 is hereby dismissed. Rule is discharged. No order as to costs.
16. Learned Advocate Mr. Pathak appearing for the workman concerned has submitted that the award in question made by the labour Court concerned on 21st July, 1996 has been stayed by this Court and the benefits under Section 17-B have been paid to the workman concerned. He has submitted that some suitable directions are required to be given to the Corporation for implementation of the award in question as modified by this Court within some reasonable period. Considering the request made by Mr. Pathak, it is directed to the petitioner in Special Civil Application No. 10503 of 1996 to implement the award in question as modified by this Court and to reinstate the workman concerned with continuity of service with effect from 21st July, 1996 within one month from the date of receipt of copy of this order and to pay full wages from the date of the award 21st July, 1996 till the date of his actual reinstatement after adjusting the payments made by the Corporation to the workman under Section 17-B of the Industrial Disputes Act, 1947 within three months from the date of receipt of copy of this order.