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Judgment
Judgement and award dated 04.12.2018 rendered in Reference (L.C.P) No. 34 of 2014 by the Labour Court, Palanpur awarding the reinstatement to the respondent workman is sought to be assailed in this petition under Article 227 of the Constitution of India.
By office order dated 17.08.2013 passed by Aarasuri Ambajimata Devsthan Trust, Palanpur ( for short 'employer')m services of the respondent came to be terminated while relying upon Condition No. 10 in her letter of appointment according to which, her services could be terminated without notice. In the said order of termination, following material recitals bearing on the dispute involved in this petition came to be made:
(1) That by office order dated 25.01.2017 and 21.01.2008, she was appointed as Staff Nurse on fixed salary of Rs. 3500/ for the period of 11 months each;
(2) Certain vacancies were sought to be filled up as published and despite her having not applied for pursuance to such advertisement, she was inadvertently continued as Staff Nurse on contractual basis for a period of 5 years as Staff Nurse on the specified terms and conditions subject to regularization of her service in the regular pay scale of Rs. 45007000/ upon her satisfactory completion of 5 years services, as prescribed in Government Resolution No. 16.02.2006;
(3) She made a representation on 05.07.2013 that in absence of her regularization by 14.08.2013, she would resort to indefinite hunger strike until death in the premises of the Trust;
(4) That the Trust decided not to regularize her services since her appointment was back door entry; albeit upon sympathetic consideration her pay was raised to Rs. 9400/ as prescribed in Government Resolution dated 06.10.2011; however with a warning that her resorting to indefinite hunger strike would be treated as a misconduct exposing her to termination without notice;
(5) She resorted to hunger strike on 15.08.2013 in the morning at about 8.30 A.M. despite such warning; she not only committed misconduct but also brought disrepute to the Trust;
(6) By resorting to the said strike, she was guilty of misconduct and thus committed breach of condition no. (3) and therefore she is being terminated with immediate effect.
2.1 The aforesaid office order was subject matter of dispute in the Reference (supra). In the statement of claims Exh. 7 the workman made a grievance that instead of acceding to her request for regularization, her services were dispensed with only on the ground of her having resorted to the hunger strike until death; she inter alia made a grievance that her termination was illegal in absence of notice pay and/or compensation. She claimed full backwages, continuity of service, etc.
2.2 Before adverting to the rival submissions, it would be appropriate at the stage to reckon the relevant and historical background of the case. On 31.12.2004 an advertisement came to be published in Gujarati daily newspaper 'Sandesh' to fill up two vacant posts of Staff Nurse, amongst five sanctioned post, three of which posts were already filled up. The appointment was given to two persons Ashaben Thakkar and Bhumikaben Patel after necessary procedure on 17.03.2005. They both were regularized.
2.3 Since one Staff Nurse Ms. Cristian retired on 31.10.2005, respondent workman gave an application for her appointment on 27.11.2006 with recommendation dated 25.01.2007 by the Chairman of the petitioner trust to make her appointment and eventually she was appointed as Staff Nurse from time to time as indicated in para 2 above.
Before adverting to the rival submissions, few more facts in addition to what has been stated in paragraph 2 above are required to be noted:
[1] According to the petitioner her appointment/continuation for a period of 5 years instead of 11 months by office order dated 25.12.2008 was a mistake and was found to be a mischief played by one Mr.Taral who dealt with her case of appointment; he was punished by Collector, Banskantha after finding the said mischief.
[2] In the said factual background, the respondent insisted for her regularization; her services were eventually terminated under the circumstances mentioned in para 2 above; which termination was subject matter of Special Civil Application No. 14538 of 2013 as also Letters Patent Appeal No. 24 of 2014. In Special Civil Application (supra), observations in relation to backdoor entry of the respondent in the services of the Trust were made;. while Letters Patent Appeal was disposed of with the liberty to the respondent to raise industrial dispute, the petition ( supra) was kept pending for scrutiny of the circumstances under which she was appointed. It came to be disposed of after the report that her appointment was a backdoor entry, was submitted after inquiry by the Collector, Banaskantha as aforesaid.
3.1 The petitioner opposed the reference on the ground that (1) Letters Patent Appeal No. 24 of 2014 conclusively decided the issues involved in the reference against her; (2) being a temporary appointee with brakes in services she was not entitled to regularization; (3) she having resorted to hunger strike despite a warning to the contrary by the department, the department was compelled to terminate her service after paying her full salary until the last date; (4) while relying upon order in Letters Patent Appeal (supra) in Special Civil Application No. 14538 of 2012, it was urged to deny the relief/s to her; (5) her appointment being illegal, termination which was legally done did not prejudice her.
3.2 The Labour Court however did not accept any of the above contentions raised by the petitioner and held that she was terminated in breach of Section 25 F of the Industrial Disputes Act, 1947 ( for short 'I..D.Act').
3.3 Ironically despite her alleged illegal appointment, the respondent was bestowed with benefit of rise in the salary as indicated above.
In the aforesaid contextual facts, the impugned judgement and award is require to be examined, if necessary with the judicial pronouncements cited at the bar.
4.1 The recitals in the office order of termination referred to in paragraph 2 above do justify the conclusion reached in judgement and award that the termination of the respondent was not simpliciter but stigmatic; the relevant material was thus relied upon for the said conclusion indicating the historical background to establish that her appointment was dubious , was rightly ignored since such background could not have dispensed with the mandatory procedure to be followed in a departmental inquiry before stigmatizing an employee with the misconduct.
4.2 In Ratnesh Kumar Choudhary vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Ors. [ Civil Appeal No. 8662 of 2015 ( Arising out of S.L.P. (C) No. 8450 of 2012], the appointment of the appellant was found to be illegal and yet it was held that if the misconduct/misdemeanour constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a nonstigmatic order, the court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished the employee for an act of misconduct. Though this court is not concerned with such a garb here, the principle do apply when the decision taken by the competent authority is based on misconduct without offering an opportunity to the respondent workman. Similar are the observations of this court in Hiteshkumar Manjudan Gadhvi vs. State of Gujarat through the Secretary & 1 ( Special Civil Application No. 13875 of 2018); para 5 thereof reads thus;
"5. The position of law in relation to effecting termination of service of an employee, even if on the fixed pay and who is a fixed term employee by passing an order without following principles of natural justice came to be delineated and discussed by this Court in Imranbhai Anwarbhai Majothi v. State of Gujarat being Special Civil Application No.17872 of 2017 decided on 30th November, 2017. In that case, petitioner was appointed as Beat Guard. The allegations were raised against him inter alia that he had stolen two pass books, that he mentioned wrong information in the Register to allow trucks to pass by illegally. It was stated in the order leading to his termination of service that he used the passbook for illegal purpose for which it was stolen and due to the act of negligence, caused damage to the forest's properties to a large extent. It was mentioned in the order that if the petitioner was to continue in service, it would entail greater loss and that it was not advisable to continue the petitioner in service since the petitioner was found to be negligent and careless in discharge of his duties."
4.3 The legal position is settled, that irrespective of the nature of appointment i.e temporary adhoc or probationer, the observance of the relevant procedure to dispense with the services of the employee on the ground of misconduct is must.
4.4 Act or inaction would be a misconduct only if defined to be so under the relevant disciplinary rules and not otherwise. It would not be permissible for the management to perceive the undefined act or inaction as misconduct. It cannot be a matter of presumption but a matter of definition. In the instant case no attempt was even made in the proceedings to show as to how alleged act constituted a misconduct under the disciplinary rules; in fact the disciplinary rules as may be applicable were not even pointed out to the judicial authority, nor was the opportunity to prove the misconduct was sought from the Labour Court.
It is misconceived to rely upon the historical background above stated as that was not the subject matter of dispute in the Labour Court. Dispute was raised only against termination and incidentally the facts touching the said historical background were referred to and no relief was claimed in that context nor was granted by the Labour Court. In a petition under Article 227 of the Constitution of India, the case cannot be pitched on the pleadings not forming part of the record nor can it be rested on the subject matter not forming the part of the dispute. This legal position is made in Bachhaj Nahar vs. Nilima Mandal & ors. [ civil appeal no. 5798 5799 of 2009 ( Arising out of SLP) Nos. 2376667 of 2005). Paragraph 12 thereof read as under:
"12. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the questions involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this court following the same cannot be consumed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out a case. Where neither party puts such a contention, the court cannot obviously make out such a case not pleaded, suo moto."
Following cases have also been relied upon by the learned counsel for the petitioner:
Ram Goparl Dwivedi vs. Kanpur Electricity Supply Co. Ltd with Raj Govind Singh Vs. Kanpur Electricity - 2017 (14) SCC 630
Karjan Municipality vs. Shashikant Kamalakar Shukla 2004 (3) G.L.H 23
Rajeshbhai Balvantrai Borisagar vs. State of Gujarat 2018(2) LLJ 55
Amreli Municipality vs. Gujarat Pradesh Municipal Employees Union - 2004 (2) GLH 692
Jorabhai Devkaranbhai Roz vs. State of Gujarat 2018(3) GLR 1898
Ayurvedic Officer vs. Jerambhai Kavabhai Vala 2005(3) GCD 2564
Zaveri Kalpesh Arunbhai vs. State of Gujarat 2016 JX (Guj) 1313
Raj Balam Prasad and Ors. vs. State of Bihar and Ors. AIR 2017 SC 5572
Having perused the same with the assistance of the learned counsel, this court does not find any of the facts therein even remotely nearer to the factual background involved in the proceedings herein.
In above view of the matter, though the petition being under Article 226 of the Constitution of India, this court does not find any such element therein. The petition appears to be the one under Article 227 of Constitution of India and as such, this court would not sit in appeal over the impugned judgement and award which is otherwise sustainable in accordance with law.
For the foregoing reasons, the petition fails and is dismissed. Rule is discharged. Interim relief stands vacated.
Learned counsel for the petitioner requested to stay this order to approach the higher forum. This court does not find any reason to stay the order. The request is rejected.