Rajasthan High Court - Jaipur
Ghanshyam Sharma vs Regional Manager, Rajasthan State Road ... on 1 August, 2000
Equivalent citations: [2000(87)FLR779], (2000)IILLJ1528RAJ, 2000(3)WLC236, 2001(1)WLN614
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT Arun Madan, J.
1. This special appeal is directed against the judgment dated September 29, 1997 passed by the learned single Judge whereby Civil Writ Petition No. 5309/1995 has been allowed and the Award passed by the learned Labour Court, Kota on November 25, 1993 in LCR No. 95/89 has been set aside.
2. The facts giving rise to this appeal, in nutshell, are that the appellant was working as Conductor on the vehicle of Rajasthan State Road Transport Corporation (for short, "Corporation"). A charge sheet was issued to the appellant on May 25, 1979 for the allegations inter alia that on May 11, 1979 during surprise checking of vehicle on which he was performing duty as Conductor on Beawar Shyamgarh routes, 23 adult and child passengers were found travelling without tickets. A domestic enquiry was conducted. In his report, the enquiry officer held the charges proved against the appellant. Considering the enquiry report, the respondent Corporation terminated the services of the appellant by order dated September 2, 1980, against which the appellant raised an industrial dispute, which was referred to the Labour Court.
3. Before the Labour Court in the Reference under Section 10 of the Industrial Disputes Act, 1947 (for short "the Act"), the appellant submitted his statement of claim representing inter alia that during domestic inquiry he was not afforded opportunity of hearing, thereby the inquiry was vitiated and he was illegally terminated from service, and therefore, he was also entitled to all consequential benefits including reinstatement in service. In reply to the appellant's statement of claim, the respondent Corporation contended that the termination of the appellant from service was not bad in law keeping in view his past conduct. For the past conduct the respondent Corporation represented that prior to the charge sheet in question, during checking of vehicle made on April 21, 1977, October 31, 1977, November 15, 1977 and December 6, 1977 respectively, two, three, three and eight passengers were found without tickets, and that for the checkings of April 21, 1977, November 15, 1977 & December 6, 1977 the appellant was saddled with penalty of stoppage of one and two increments with cumulative effect respectively whereas for checking made on October 31, 1977, he was imposed with penalty of censure.
4. As regards the domestic enquiry, the Labour Court observed that the representative appearing for the appellant employee frankly admitted as to the 23 adult and a child passengers having been found without tickets and without realising fare of tickets from them. Such an admission is evident from the order sheet dated October 14, 1993. Therefore the Labour Court confined the Reference for consideration only to the quantum of punishment under Section 11-A of the Act and after hearing both the sides, it held that from the evidence on record it stood proved that at the time of checking on May 11, 1979, fare was not already realised from the passengers by the appellant and he was in process of collecting the fare, and from these facts, it could merely be an act of negligence, inasmuch as there is lack of evidence to establish that on the fateful checking the appellant realised the fare it did not issue the tickets to the passengers. However, the Labour Court taking into consideration the principles of law laid down in similar circumstances by the Apex Court in the matter of Scooter India Ltd. v. Labour Court, Lucknow, AIR 1989 SC 149 : 1989 Supp (1) SCC 31 : 1989-I-LLJ- 71 concluded that the appellant employee be reinstated in service without any back wages for the intervening period from the date of termination, but with continuity in service and accordingly it passed the Award on November 25, 1993.
5. Against the aforesaid Award, the respondent Corporation preferred Writ Petition No. 5309/1995, which was allowed by the learned single Judge, setting aside the Award of the Labour Court. Hence this special appeal.
6. We have heard the learned counsel for the parties and perused impugned judgment as well as the Award of the Labour Court. Shri K.C. Sharma learned counsel for the appellant (employee) contended that the reference to the Labour Court was confined to the quantum of punishment only and therefore the learned Labour Court rightly exercised its discretion under Section 11-A of the Act. In view of categorical findings to the effect that the conduct of the appellant at best amounted to a negligence only because it could not have been established by the Corporation that on the fateful date of checking the passengers were charged fare but were not issued tickets, rather stood established on record that the appellant conductor was realising the ticket fare from the passengers and issuing tickets prior to and after the checking being conducted, the learned Labour Court in exercise of its discretion under Section 11-A of the Act rightly passed the Award by reduction in punishment of termination and by directing the Corporation to reinstate the appellant without back wages. Therefore learned counsel for the appellant contended that in the light of the decisions in Scooter India Ltd. v. Labour Court (supra) Jitendra Singh v. Shri Baidyanath Ayurved Bhawan Ltd. AIR 1984 SC 976 : 1984 (3) SCC 5 : 1984-II-LLJ- 10, Baldev Singh v. Labour Court AIR 1987 SCC 104 : 1995-III-LLJ (Supp)-462 and N. Mohandas v. Southern Industrial Polymers (P) Ltd. 1993-II-LLJ-1102 (Mad), the learned single Judge has committed illegality in interfering with the Award of statement and therefore the impugned judgment deserves to be reversed, upholding the Award under Section 11-A of the Act.
7. Learned counsel for the respondent Corporation reiterated the contentions which were canvassed before the learned single Judge, and contended that past conduct of the appellant has been such that it deserves no lenient view being taken since on many occasions in the past as well, some passengers were on checking found travelling without tickets during the vehicle checking on his duty, on three different occasions and, therefore, taking into consideration past conduct of the appellant, the learned single Judge committed no error of law in upholding the punishment of termination in exercise of superintendence under Article 227 of the Constitution of India.
8. We have given our thoughtful consideration to the rival contentions of the parties and examined the decisions cited at the Bar. The only question for consideration is as to whether in exercise of jurisdiction under Articles 226 & 227 of the Constitution of India, the learned single Judge could quash the Award of reinstatement passed by the Labour Court in a Reference of industrial dispute which was confined only to the quantum of punishment under Section 11-A of the Act.
9. Before dealing with the question at issue, we advert to the law laid down by the Apex Court as well as Madras High Court in the decisions cited at the Bar.
10. In Scooter India Ltd. v. Labour Court (supra), the matter had come up in special leave petition before the Apex Court against the dismissal of the writ petition by the High Court declining to quash the Award of the Labour Court in a reference made to it under Section 4(k) of the U.P. Industrial Disputes Act, 1947 in favour of the employee and substituting the order of termination of service by an order of reinstatement together with 75% back wages. In that case the High Court while sustaining the award passed by the Labour Court averted to Section 6(2A) of the Act which is analogous to Section 11-A of the Industrial Disputes Act and pointed out that the Section confers wide powers on the Labour Court to interfere with an order of discharge or dismissal of a workman and to direct the setting aside of the discharge or dismissal and ordering the reinstatement of the workman on such terms and conditions as it may think fit, including the substitution of any lesser punishment for discharge or dismissal as the circumstances of the case may require and therefore the High Court held that the Labour Court was well within its jurisdiction in setting aside the order of termination of services of the employee and instead ordering his reinstatement together with 75% back wages. It was a case where the Labour Court after analysing the evidence found that the order of dismissal of the workman was passed on the first charge sheet and separate orders were not passed in regard to other charge sheets though the record of other charge sheets also finds place in the dismissal order. The Apex Court after taking into consideration aforesaid facts of that case, held as under:
"It cannot therefore be said that the Labour Court had exercised its powers under Section 6(2A) of the Act in an arbitrary manner and not in a judicial manner. The Labour Court has taken the view that justice must be tempered with mercy and that the erring workman should be given an opportunity to reform himself and prove to be a loyal and disciplined employee of the petitioner Company. It cannot therefore be said that merely because the Labour Court had found the enquiry to be fair and lawful and the findings not to be vitiated in any manner, it ought not to have interfered with the order of termination of service passed against the respondent in exercise of its powers under Section 6(2A) of the Act."
11. In Jitender Singh v. Shri Baidyanath Ayurved Bhawan Ltd. (supra), the Industrial Tribunal found that though the charge of misconduct within the meaning of Clause 16 (iii) (a) of the Standing Orders were established, punishment of termination of service was not warranted and accordingly reinstatement was ordered. The order of the Tribunal was challenged before the High Court under Article 227 of the Constitution of India. The High Court holding that withholding of 50% of back wages was a condition of reinstatement and was not by way of punishment and, therefore, it concluded that the order of reinstatement was not called for. However the High Court vacated the reinstatement but directed payment of compensation to the workman in lieu of reinstatement quantifying it at Rs. 15,000/-. This modification was assailed in appeal before the Supreme Court. The Apex Court observed that the High Court is not entitled to exercise the powers of the Tribunal and substitute and award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. The Apex Court then held mat where the Tribunal had by its award directed reinstatement and withheld payment of half of the back wages in view of proved misconduct, the order of the High Court in exercise of power of superintendence under Article 227 of the Constitution that quashed the direction for reinstatement and awarded compensation, was improper when the High Court did not record a finding to the effect that there was loss of confidence of employer.
12. In Baldev Singh v. Labour Court (supra), the Labour Court found that the punishment of dismissal against the employee (appellant) was harsh and therefore directed his reinstatement but without back wages and after unsuccessfully challenging the Award in the High Court the employee preferred special leave petition before the Apex Court, which held as under:
"The award of the Tribunal is in consonance with Section 11-A of the I.D. Act. The Tribunal considering the harshness of the punishment, considering the nature of the charges, directed reinstatement but without back wages. There is no lack of jurisdiction for the Labour Court to make this order. The order is not contrary to the provisions of Section 11-A of the Act. There is no infirmity, far less any illegality."
13. In N. Mohandas v. S.I. Polymers (P) Ltd. (supra), upon dismissal of employee after domestic enquiry on three charges one of them being sleeping during night shift while on duty and switching off of laboratory oven thereby endangering quality of products of company the dispute was referred. The Labour Court found that charges had been proved and on consideration of past history and conduct of employee holding that punishment of dismissal is not disproportionate to gravity of misconduct. The single Judge as also Division Bench not interfering with award of Labour Court held that where the findings of domestic enquiry officer or Labour Court are based on some evidence, which is relevant and sufficiently proves the guilt of delinquent concerned, and the evidence relied upon reasonably support the conclusion that the delinquent worker is guilty of charge, it is not the function of High Court in a petition under Article 226 to review the evidence and arrive at an independent finding on the evidence. The Madras High Court held that Labour Court is the sole judge of facts and that even on the aspect of quantum of punishment, Labour Court has correctly exercised its power under Section 11-A of Industrial Disputes Act, 1947.
14. Thus viewed from the principles of law laid down in the decisions referred to above, we are of the opinion that wide discretion is vested in the Tribunal & Labour Court under Section 11-A of the Act in awarding the relief and while doing so, it can pass the order of reinstatement and that apart, the Labour Court can interfere with the punishment awarded by the disciplinary authority if termination of services is unjustified and the Labour Court is the sole judge of facts and that even on the aspect of quantum of punishment, it had the discretion, under Section 11-A of the Act as to what penalty in the circumstances of the case should be meted out to the guilty employee. When the Labour Court exercised its discretion under Section 11-A, this Court must be reluctant to interfere with the Award of the Labour Court unless it is (sic) contrary to the provisions of Section 11-A of the Act, particularly when it is not shown that the discretion was totally exercised arbitrarily, because it is not the function of this Court under Article 226 to review the evidence and arrive at an independent finding.
15. Applying the canons of law on the aspect of discretion under Section 11 of the Act to the instant case, we must hold that the learned single Judge interfered with the discretion exercised by the Labour Court under Section 11-A of the Act whereby the Labour Court by its Award had directed reinstatement without back wages in view of proven misconduct. Thus the order of the learned single Judge in exercise of power of superintendence under Article 227 of the Constitution whereby he quashed the Award of reinstatement was improper, and substitute the Award as in the case of an appeal by arriving at an independent finding on review of the evidence. The learned single Judge observed as under:
".....the respondent workman was found carrying passengers without ticket on four different occasions within a span of one year of his appointment to the post of Conductor Different charge sheets have been issued. The respondent workman has thrice been punished with stoppage of increments with cumulative effect and also warning. That being not sufficient for the concerned workman to improve himself, he was again carrying 23 and half passengers without: ticket, just after 14 months of the last incident. There was no infirmity in the domestic enquiry held by the Corporation."
16. On these findings the learned single Judge concluded that the Labour Court was not justified in interfering with the punishment of dismissal by reinstating the workman. Of course, indisputably the appellant was issued charge sheets on four different occasions and the charges related to acts of misconduct; which were held proved in respective domestic enquiries and the Labour Court had the inquiries in conformity with the statutory prescriptions and therefore were not vitiated in any manner. In our considered view, the learned single Judge in fact reiterated the reasons assigned by the Labour Court but declined to agree with the Award of reinstatement of the appellant, merely by arriving at the conclusions that the appellant was again charged of carrying 23 adults and a child passenger without ticket just after 14 months of its last incident, whereas there was no infirmity in the domestic enquiry held by the Corporation.
17. We are of the firm opinion that the learned single Judge failed to show as to how the Labour Court was not justified in interfering with the punishment of dismissal. Merely because the single Judge or the Labour Court had found the enquiry to be fair and the findings not to be vitiated, it cannot be said that the order of termination of service ought not to have been reversed in exercise of its powers under Section 11-A of the Act, by directing the Corporation to reinstate the appellant without back wages with continuity of service. There is no lack of jurisdiction for the Labour Court to make the Award which is in consonance with and not contrary to Section 11-A of the Act and there is no infirmity, far less any illegality. Therefore, the learned single Judge ought to have been slow in disturbing the Award of reinstatement by arriving at independent finding on review of the evidence which is not permissible in exercise of jurisdiction under Articles 226 & 227 of the Constitution, as has been held by the Apex Court in Scooter India v. Labour Court (supra) wherein also in similar circumstances like the present one, three charge sheets pertaining to the acts of major misconduct were issued to the employee who was held guilty of the charges but the Labour Court held the order of termination as not justified, and it passed Award of reinstatement, which was upheld by the Apex Court.
18. Before parting with the judgment, we are constrained to observe that it is a case where order of termination of the appellant was passed on September 2, 1980, to which industrial dispute was raised by the employee but the State Government took nine years to refer the dispute to the Labour Court under its order dated July 26, 1989. That apart, the termination order was interfered by directing reinstatement of the appellant under the Award dated November 25, 1993, but the employee was not reinstated in service by the Corporation till date, despite the fact that there has been no stay order of the Award. The act of the State Government and the Corporation is deprecated, because their act is totally in disregard to the object and legislative intent enacted for the welfare of the employees and workmen of the industrial establishments. Admittedly there was no writ petition filed by the appellant workman challenging the Award of the Labour Court in not granting back wages for the intervening period from the date of termination till reinstatement.
19. As a result of the above discussion, we allow this special appeal. The impugned judgment of the learned single Judge is set aside. The Award passed by the Labour Court dated November 25, 1993 by which it has directed reinstatement of the appellant workman in service without any back wages for the intervening period from the date of termination but with continuity of service, is upheld. There will be no order as to costs.