Ahmedabad Municipal Transport Service vs Mohammad Yakqub Abdul Quadar Shaikh

M.R. Shah, J.—Rule. Shri Yogen Pandya, learned advocate waives service of notice of Rule on behalf of the Respondent. In the facts and circumstances of the case and with the consent of learned advocates appearing on behalf of respective parties, petition is taken up for final hearing today.

By way of this petition under Article 227 of the Constitution of India,Petitioner Ahmedabad Municipal Transport Service (hereinafter referred to as "AMTS") has prayed for an appropriate writ, direction or order quashing and setting aside the impugned order passed by the Industrial Tribunal, Ahmedabad dated 23.08.2010 in Approval Application (IT) No. 413/2005, by which the approval application submitted by the Petitioner u/s 33(2)(b) of the Industrial Disputes Act, 1947 to terminate/dismiss the Respondent from service date 27.09.2005 has been dismissed.

That a departmental inquiry was initiated against the Respondent conductor for reissuing the tickets and the charge and misconduct came to be proved and it was decided to dismiss the Respondent from service, however, as some dispute was pending before the Tribunal,Petitioner submitted approval application (IT) No. 413/2005 u/s 33(2)(b) of the Industrial Disputes Act, 1947 seeking approval to dismiss him from service. However, relying upon the decision of the Hon''ble Supreme Court in the case of State of Punjab v. V.K. Khanna and Ors. reported in AIR 2001 SC 343, the Tribunal rejected the said application declaring the departmental inquiry illegal as name of the inquiry officer was disclosed in the chargesheet itself. Being aggrieved and dissatisfied with the aforesaid order rejecting the approval application,Petitioner Ahmedabad Municipal Transport Service has preferred the present Special Civil Application under Article 227 of the Constitution of India.

Shri Munshaw, learned advocate appearing on behalf of thePetitioner has vehemently submitted that in the present case having been satisfied that theRespondent has committed serious misconduct for which the departmental inquiry was to be initiated, straightway the departmental inquiry was initiated and the chargesheet was issued in which the name of the inquiry officer was disclosed. It is submitted that therefore, when straightway the departmental inquiry was initiated and the chargesheet was issued in which the name of the inquiry officer was disclosed, it cannot be said that there was any bias and/or the same was in breach of principles of natural justice. It is submitted that considering the facts of the case, Tribunal has materially erred in relying upon the decision of the Hon''ble Supreme Court in the case of V.K. Khanna (Supra). It is submitted that in the case before the Hon''ble Supreme Court a show-cause notice was issued against the employee and he was called upon to show cause why the departmental inquiry shall not be initiated and before any reply is submitted by the employee, employer issued the chargesheet and declared the name of the inquiry officer in the chargesheet and to that the Hon''ble Supreme Court has held that the same is illegal and it showed bias. Therefore, it is submitted that on facts, the decision of the Hon''ble Supreme Court in the case of V.K. Khanna (Supra) would not be applicable. The impugned order passed by the Tribunal rejecting the approval application relying upon the aforesaid decision deserves to be quashed and set aside.

Petition is opposed by Shri Yogen Pandya, learned advocate appearing on behalf of the Respondent. It is submitted that even according to the Respondent the termination/dismissal was considered and/or dealt with at all and therefore, it is requested to remand the matter to the Tribunal only for the aforesaid purpose i.e. to consider by the Tribunal whether the termination/dismissal was by way of victimization or not.

Shri Munshaw, learned advocate appearing on behalf of the Petitioner has submitted that when there is a finding given by the Tribunal thatPetitioner has followed the procedure and has satisfied all the conditions of Section 33(2)(b) of the Industrial Disputes Act, 1947, there is no question of remand to the Industrial Tribunal.

Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted that while holding the departmental inquiry illegal and in breach of principles of natural justice, the Tribunal has relied upon the decision of the Hon''ble Supreme Court in the case of V.K. Khanna (Supra). However, considering the facts of the case on hand it appears to the Court that the said decision would not be applicable to the present case. In the case before the Hon''ble Supreme Court, it was specifically found that before initiating departmental inquiry, show-cause notice was issued upon the employee and he was called upon to show cause why departmental inquiry should not be initiated and even before the reply was filed by the delinquent, the Chief Secretary issued the chargesheet against him and the Chief Minister made an announcement appointing an Inquiry Officer to go into the charges and to that the Hon''ble Supreme Court observed that aforesaid conduct indicates the mindset that the inquiry was proceeded irrespective of the reply and Hon''ble Supreme Court further observed that the attitude of the authorities towards the delinquent was not free and fair. The Hon''ble Supreme Court also found that there was a bias in initiating the departmental inquiry. Considering the facts of the case on hand, it appears that in the present case having been prima facie satisfied that the Respondent has committed misconduct for which a departmental inquiry is to be initiated, straightway the departmental inquiry was initiated and the chargesheet was issued in which the name of the inquiry officer was disclosed. It is not the case on behalf of the Respondent that straightway departmental inquiry cannot be initiated. Shri Pandya, learned advocate appearing on behalf of the Respondent has fairly conceded that in an appropriate case and having been prima facie satisfied that the Respondent has committed serious misconduct for which departmental inquiry is to be initiated, straightway departmental inquiry can be initiated and the chargesheet can be issued. Under the circumstances, it cannot be said that there was any bias and/or the same was in breach of principles of natural justice. On the aforesaid facts, the decision of the Hon''ble Supreme Court in the case of V.K. Khanna (Supra) would not be applicable. Under the circumstances, the impugned judgment and order passed by the Industrial Tribunal in dismissing the approval application relying upon the decision of the Hon''ble Surpeme Court in the case of V.K. Khanna (Supra), cannot be sustained as the said is on misreading and misinterpretation of the decision of the Hon''ble Supreme Court.

However, it is the case on behalf of the Respondent that the order of termination/dismissal was by way of victimization. Considering the impugned judgment and award passed by the Tribunal, it appears that the same has not been considered and/or dealt with by the Tribunal at all. It is to be noted that the approval application submitted by the Petitioner u/s 33(2)(b) of the Industrial Disputes Act, 1947. It cannot be disputed that if the application is u/s 33(2)(b) of the Industrial Disputes Act, 1947, the Tribunal can consider whether the action to be taken by the employer, which is sought to be approved, is by way of victimization or not. While exercising powers u/s 33(2)(b) of the Industrial Disputes Act, 1947, if the Tribunal is satisfied that the action of the management is not bonafide or that the principles of natural justice have been violated or that the material on the basis of which the management came to a certain conclusion, would justify any reasonable person in coming to such a conclusion, the Tribunal can and may refuse to grant permission/approval also. Therefore, when the Respondent sought to contend before the Tribunal that the action of dismissal which was sought to be approved by way of victimization, the Tribunal was required to consider the same irrespective of fact whether other conditions as envisaged u/s 33(2)(b) of the Industrial Disputes Act, 1947 are complied with or not. In the present case, as the Tribunal has not considered the case on behalf of the Respondent that the proposed action of dismissal by way of victimization, only for that, the matter is required to be remanded to the Tribunal. Shri Pandya, learned advocate appearing on behalf of the Respondent has also agreed that the matter be remanded only for the aforesaid purpose and to consider whether the proposed action of dismissal which was sought to be approved by the Petitioner, was by way of victimization or not and no other aspect is required to be considered by the Tribunal as agreed between the learned advocates appearing on behalf of respective parties.

In view of the above and for the reasons stated above, the impugned judgment and award passed by the Industrial Tribunal, Ahmedabad dated 23.08.2010 passed in approval application (IT) No. 413/2005 is hereby quashed and set aside and the matter is remanded to the Tribunal only for the purpose of considering whether the proposed action of dismissal which was sought to be approved by the Petitioner, was by way of victimization or not. Industrial Tribunal is directed to decide and dispose of the aforesaid application on remand at the earliest. Rule is made absolute to the aforesaid extent. No costs.

Registry is directed to send the writ of this order to the Tribunal immediately.