Himachal Pradesh High Court
Kali Kant Jha vs M/S Birla Textile Mills on 5 May, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2795 of 2008 .
Reserved on: 03.01.2018
Decided on: 05.05.2018
Kali Kant Jha ...Petitioner.
Versus
M/s Birla Textile Mills
Coram
r to ...Respondent.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the petitioner: Mr. Rajiv Rai, Advocate.
For the respondent: Mr. R.L. Sood, Senior Advocate, with Mr. Sanjeev Kumar, Advocate.
Vivek Singh Thakur, Judge.
Instant petition has been instituted assailing order, dated 7th January, 2008, passed by H.P. Industrial TribunalcumLabour Court, Shimla (for short "Labour Court") whereby Application No. 48 of 2004 preferred by employerrespondent under Section 33 (2) (b) of Industrial ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 2 Disputes Act, 1947 (for short "ID Act") for approval of dismissal of petitioner herein with effect from 10 th June, .
2004 after completion of domestic inquiry against him, upholding the findings of management of respondent Company qua dismissal of the petitioner has been allowed (for short "impugned order").
2. Petitioner had been working as a workman with respondentCompany since 23rd June, 1988. On 23rd February, 2004, he was served with a charge sheet alleging therein that during 4th February, 2004 to 9th February, 2004, he made wrong entries regarding working hours of tractor engaged for collecting husk resulting into undue benefit to the tractor owner and undue loss of ten hours fifteen minutes to the respondentCompany. It was further alleged that on 21st February, 2004, when Mechanical Engineer and General Manager (Engineer) enquired from him in that regard, he misbehaved with them and when he produced register on their asking, wherein working hours of tractor were recorded, it was found that he had torn entries of ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 3 relevant period in the said register and it was committed by him to save himself. Lastly, it was alleged that he was in .
habit of making such entries, in which regard the company was having sufficient proof. Considering the act of petitioner a serious misconduct under Standing Orders, petitioner was suspended with immediate effect during the within 48 hours.
r to inquiry with a direction to file response to the charge sheet
3. Petitioner filed response on 24 th February, 2004, refuting the allegations of charge sheet stating therein that charge sheet was without any basis and far from truth. It was further stated that no documents had been supplied alongwith charge sheet, which is against principle of natural justice and it was not possible to submit clarification to the charge sheet for want of relevant documents.
4. On finding reply filed by the petitioner unsatisfactory, on 26th February, 2004, management of respondentCompany decided to conduct domestic inquiry and, thus, appointed Inquiry Officer, who, vide notice, dated ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 4 27th February, 2004, asked the petitioner to appear before him on 2nd March, 2004 at 4.00 p.m. in Inquiry Room.
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RespondentCompany had appointed Shri Vibhor Gupta as Presenting Officer whereas petitioner had asked to permit him to be assisted by Shri Om Chand Sharma, but the Inquiry Officer refused to permit Shri Om Chand Sharma as a representative/assistant of petitioner as it was not permissible to have assistance of outsider under Standing Orders and petitioner was advised to appoint any coworker as his representative/assistant whereupon petitioner had asked time to think over it.
5. On 11th March, 2004, petitioner filed an application for supply of copy of inquiry proceedings, statements of witnesses and other documents. In view of the said application, recording to statements of witnesses of respondentCompany was deferred and on 15th March, 2004, application of petitioner was disposed of with observation that copies of inquiry proceedings, statements of witnesses and complaint shall be supplied to petitioner. On the same ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 5 day, copies of inquiry proceedings, dated 2 nd March, 2004; 8th March, 2004 and 11th March, 2004 were supplied to .
petitioner and statement of one witness B. Parsad was recorded, to whom the petitioner refused to crossexamine.
6. On 17th March, 2004, petitioner asked to permit Mahender Singh as his assistant/representative in the inquiry, but his request was declined on 5th April, 2004 informing him that Mahender Singh was also an accused in the same matter and, therefore, he could not be allowed to assist/represent petitioner in present case. Thereafter, statements of witnesses were recorded.
7. During pendency of inquiry, petitioner submitted representation to the management of respondentCompany stating therein that inquiry was not being conducted adhering to principles of natural justice; facts were being recorded by manipulating the statements of workers and entire proceedings were being conducted without supplying copy of Standing Orders. Petitioner had also asked for supply of copy of log book of tractor. Inquiry Officer had ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 6 refuted the allegations made by the petitioner and it was also informed that concerned pages of log book of tractor .
were torn by the petitioner and thus, could not be produced.
Petitioner crossexamined the witnesses of respondent Company, but signed under protest without specifying reason for protest. Thereafter, statement of petitioner was recorded and he was also subjected to crossexamination wherein petitioner had admitted that he was on duty with effect from 4th February, 2004 to 7th February, 2004.
Petitioner had also admitted his signatures on the entries of working hours of the tractor engaged for collecting husk, however, it was stated that other officers had also signed the same.
8. After going through the statements of witnesses and record, the Inquiry Officer submitted his report admitting the allegations of charge sheet to be true. Inquiry Officer had also informed petitioner vide registered letter, dated 3rd May, 2004 about submission of inquiry report, dated 11th May, 2004. The said report was also received by ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 7 petitioner on 4th June, 2004 at 8.30 a.m. under his signatures.
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9. After receiving the inquiry report, management of respondentCompany decided to dismiss services of the petitioner and sent registered AD to him on 9th June, 2004 with information that as an industrial dispute under general reference was pending before the Labour Court, Shimla in which petitioner was also one of a workman, respondent Company had been filing an application under Section 33 (2)
(b) of the ID Act for approval to dismiss petitioner as a part of the same transaction and one month salary was also sent to petitioner alongwith the notice.
10. In application preferred by respondentCompany before the Labour Court, petitioner was served. After service in application preferred by respondentCompany before the Labour Court, petitioner engaged Mr. Hem Raj, Advocate, to represent him, who, on 18 th April, 2006 made a statement that petitioner did not want to file reply. In pursuance to the said statement, right of defence of ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 8 petitioner was struck off and, thereafter, the case was fixed for recording of evidence of respondentCompany on 11th .
October, 2006, on which date Presiding Officer of Labour Court was on leave and case was adjourned for 16 th December, 2006. Since 16th December, 2006, petitioner was represented by Mr. Niranjan Verma, Advocate. On 5 th April, 2007, conciliation between parties failed as petitioner was not willing to settle the dispute. Thereafter, evidence of respondentCompany was taken on record and petitioner was also permitted to lead evidence.
11. After closing evidence, application was heard on the basis of material available on record and the Labour Court approved findings of the management of respondent Company by upholding the dismissal of petitioner vide impugned order.
12. Present petition has been preferred by the petitioner mainly on the grounds that documents with charge sheet were not supplied, Inquiry Officer was appointed without supplying the papers demanded at the ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 9 time of filing of reply to charge sheet, comparative chart indicating the difference in recording working hours of the .
tractor was neither prepared correctly nor supplied before submission of reply by the petitioner. Further, that the petitioner was charged for wrong entries of working hours of tractor with effect from 4th February, 2004 to 9th February, 2004 whereas he was on leave on 8 th and 9th February, 2004;
working hours of the tractor were not calculated correctly and the Inquiry Officer did not record correct version of witnesses, but noted down statements himself manipulating the same in favour of respondentCompany and also that Standing Orders regarding proceedings of inquiry were not supplied, list of witnesses, statements of witnesses and daily log book of tractor with effect from 4 th February, 2004 to 9th February, 2004 were not produced and further, the denial of Inquiry Officer to appoint Om Chand Sharma as assistant/representative of petitioner was also illegal.
13. It is contended on behalf of petitioner that there was no material before Inquiry Officer as well as ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 10 management of respondentCompany so as to return finding against petitioner and to dismiss him pursuant thereto.
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Further that petitioner had not been provided relevant documents in time and denied effective and proper assistance of persons, as desired by him, so as to enable him to lead evidence in his support and to place material before and to prove his defence.
r to the Inquiry Officer enabling him to refute the charge sheet
14. Reliance has been placed by the petitioner on pronouncement of apex Court in case titled as The Board of Trustees of the Port of Bombay versus Dilipkumar Raghavendranath Nadkarni and others, reported in AIR 1983 Supreme Court 109, wherein decision reached by Domestic Tribunal was held to be vitiated for the reason that inquiry was held in violation of the principle of natural justice on the ground that the delinquent was not afforded a reasonable opportunity to defend himself by not allowing the delinquent employee to be represented by a legal practitioner despite seeking permission to appear through a ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 11 legal practitioner whereas employer was represented by well qualified expert legal advisor.
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15. Plea of petitioner that for want of adequate opportunity to defend his case by leading evidence in support of his contention is not tenable. It is settled position of law that the Labour Court can resort to calling for evidence of parties in an application filed for approval of dismissal in pursuance to domestic inquiry and in such eventuality, parties are free to lead evidence in support of their claim. In present case also, even if it is considered that petitioner was deprived of leading evidence and expert assistance during the inquiry, he was having opportunity to file response and lead evidence in support of his contentions before the Labour Court where, though, he was represented through well qualified Advocate and also appeared as a witness, but, had chosen not to file reply and to lead any evidence corroborating his plea now being taken in the writ petition as well as in response to the charge sheet.
::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 1216. In Dilipkumar Raghavendranath Nadkarni's case (supra) the decision of Domestic Tribunal .
was in question and delinquent employee was not having any opportunity thereafter to defend himself, whereas, in present case, after completion of domestic inquiry, an application for approval of dismissal of petitioner was filed by respondentCompany before the Labour Court and during adjudication of the said application, Labour Court had called the parties to file response and to lead evidence in support of their respective contentions without any circumvention.
Therefore, in given facts of present case, the ratio of law laid down by the apex Court in Dilipkumar Raghavendranath Nadkarni's (supra) is not applicable.
17. Learned counsel for respondentCompany has relied upon judgment of the apex Court in case titled as Cholan Roadways Ltd. versus G. Thirugnanasambandam, reported in (2005) 3 Supreme Court Cases 241, wherein it has been held that the jurisdiction of Industrial Tribunal under Section 33 (2) (b) of ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 13 the ID Act is a limited one and cannot be equated with that of Section 10 of ID Act and the principles of Evidence Act .
have no application in the domestic inquiry.
18. On the basis of this judgment, it has been contended that the Inquiry Officer had conducted inquiry in consonance with provisions of ID Act and the said inquiry
19. to cannot be rejected by applying rigours of Evidence Act.
In my opinion, this judgment has no relevance in present case as Labour Court, during adjudication of application for approval of dismissal of petitioner filed before it, has given adequate opportunity to parties to represent their case by filing pleadings and leading evidence.
20. It is also argued on behalf of petitioner that in para 8 of its application filed before the Labour Court, respondentCompany itself has referred that there were other references bearing No. 96/2000, 129/2000 and 152/2000 which were pending adjudication before the Labour Court and, therefore, in view of proviso to Section 33 (2) (b) of ID Act, respondentCompany was not entitled to ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 14 discharge or dismiss the petitioner as respondentCompany had dismissed his services vide order, dated 10 th June, 2004 .
and the application had also been filed on the very same day whereas proviso to Section 33 (2) (b) of ID Act provides that no such workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of action taken by the employer.
21. Relying upon judgment of apex Court in case titled as Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.
versus Ram Gopal Sharma and others, reported in (2002) 2 Supreme Court Cases 244, it has been contended that noncompliance of proviso to Section 33 (2) (b) of ID Act has rendered the dismissal of petitioner void and inoperative.
22. There is no dispute with regard to ratio of law laid down by the apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.'s case (supra), wherein it has ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 15 been held that where an application is made under Section 33 (2) (b) proviso, the authority before which the proceeding .
is pending for approval of the action taken by the employer has to examine; whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not etc.; and if the authority refused to grant approval, obviously it follows that the employee continues to be in service as if the order of discharge or dismissal had never been passed and though, the order of dismissal of discharge passed invoking Section 33 (2) (b) dismissing or discharging an employee brings an end of relationship of the employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. Further held that in other words, this relationship comes to an end de jure only when the authority grants approval; if approval is not given, nothing more is required to be done by the employee, ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 16 as it will have to be deemed that the order of discharge or dismissal had never been passed and consequence of it is .
that the employee is deemed to have continued in service entitling him to all the benefits available. But, in present case, after considering the evidence on record, authority has approved dismissal and the same is operative from the date of order as the application for approval of dismissal and payment of one month's salary, as envisaged in proviso, was made simultaneously.
23. Referring to the judgment of apex Court in case titled as Bilaspur Raipur Kshetriya Gramin Bank and another versus Madanlal Tandon, reported in (2015) 8 Supreme Court Cases 461, wherein for nonsupply of documents with the charge sheet, which were basis for charges labelled against the delinquent employee, and supply of only some of irrelevant documents during departmental inquiry and also nonsupply of list of arguments and witnesses produced during the course of inquiry, order of punishment, set aside by the High Court, ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 17 has been upheld; counsel for the petitioner has canvassed for setting aside of domestic inquiry report and punishment .
imposed upon the petitioner on the basis of the said report.
24. In para 9 of the judgment, the apex Court has observed that even at the time of arguments, learned counsel appearing for employer was not able to demonstrate the supply of documents even during the course of inquiry, which were basis of inquiry report and for punishment, whereas, in present case, in crossexamination before the Inquiry Officer, the petitioner had categorically admitted supply of documents, though, delayed supply. In any case, all the documents were available with the petitioner while he was contesting the application for approval of his dismissal before the Labour Court, but nothing material was placed to refute the evidence available on record against him.
25. Relying upon M/s. Firestone Tyre & Rubber Co. of India (P) Ltd. versus The Workmen Employed represented by Firestone Tyre Employees' Union, ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 18 reported in AIR 1981 Supreme Court 1626, it is contended on behalf of the petitioner that where the charge .
sheet was vague, it must be held that there is no proper inquiry and when it appears that inquiry conducted by the employer was not fair in the sense that proper charge had not been served on the employee or proper or full opportunity had not been given to the employee to meet the charges or inquiry had been affected by other grave irregularities vitiating it, then position would be that Tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee itself and the same result would follow, if no inquiry had been held at all.
26. Further, it is argued that in present case, for the aforesaid reasons, the Labour Court should not have approved the dismissal of petitioner on the basis of irregular domestic inquiry.
27. As discussed hereinabove, petitioner has not filed any response to counter the application or domestic inquiry before the Labour Court and the evidence led by petitioner is ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 19 also not sufficient to rebut the evidence led by respondent Company and the findings returned by the Inquiry Officer .
on the basis of the said evidence.
28. Learned counsel for respondentCompany, while placing reliance on pronouncement of apex Court in case titled as Jagdish Lal and others versus State of r to Haryana and others, reported in (1997) 6 Supreme Court Cases 538, has pleaded that present petition deserves to be dismissed for unexplained and inordinate delay and laches as the impugned order was passed by the Labour Court on 7th January, 2008 and the instant petition was filed in the Court on 6th July, 2008.
29. In response to plea of delay and laches, counsel for petitioner has relied upon judgment of apex Court in case titled as Jasmer Singh versus State of Haryana and another, reported in (2015) 4 Supreme Court Cases 458, wherein it has been held that provisions of Limitation Act, 1963 are not applicable to the proceedings under the ID Act ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 20 and relief under it cannot be denied to the workman merely on the ground of delay.
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30. In my opinion, this case is not applicable in present case as for deciding the issue of delay and laches, provisions of Limitation Act are not to be made applicable.
Issue in this case has been decided with reference to proceedings under ID Act undertaken before the Labour Court and not with regard to invoking of extra ordinary jurisdiction under Article 226 of the Constitution of India for judicial review of decision of Labour Court.
31. However, I am not inclined to dismiss the claim of petitioner on the ground of delay and laches for the reason that the petitioner is a workman and has tried to explain delay caused in filing the instant petition in para 21 of the petitioner. Also, it cannot be ignored that ID Act is a beneficial legislation and proceedings arising out of the said Act, even under Article 226 of the Constitution of India, especially when preferred by a workman, should not ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 21 ordinarily be disposed of on technical grounds as justice should not only be done but also seems to have been done.
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32. Relying upon judgments of the apex Court in A.P. SRTC versus Raghuda Siva Sankar Prasad, reported in (2007) 1 Supreme Court Cases 222; and Divisional Controller, Karnataka State Road r to Transport Corporation versus M.G. Vittal Rao, reported in (2012) 1 Supreme Court Cases 442, it has been canvassed that judicial review under Article 226 of the Constitution of India on findings returned by a Tribunal on the basis of material placed before it is available only in case the Tribunal has ignored the evidence placed before it or the findings returned by Tribunal are totally perverse and contrary to the evidence on record. It is argued that power of judicial review cannot be exercised as a power of appellate Court to reappreciate the finding of fact based on evidence before the Tribunal.
33. RespondentCompany has also relied upon judgment, dated 27th October, 2015, rendered by a Division ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 22 Bench of this Court in case titled as M/s Krishna Paper Board Industries versus Sh. Rakam Singh and .
another, being LPA No. 12 of 2009, emphasizing upon the limits of judicial review by the Writ Court.
34. Considering ratio of law laid down by the apex Court, as also reiterated in K.V.S. Ram versus Bangalore r to Metropolitan Transport Corporation, reported in (2015) 12 Supreme Court Cases 39, it is settled law of land that in exercise of power of judicial review as well as superintendence, High Court can interfere with order of Tribunal only when there is patent perversity in order of Tribunal or where there is a gross and manifest failure of justice or principles of natural justice have been flouted.
35. Judgment of apex Court in case titled as Raj Kumar Dixit versus Vijay Kumar Gauri Shanker, Kanpur Nagar, reported in (2015) 9 Supreme Court Cases 345, has also been relied upon by respondent Company to contend that no new pleadings are permissible ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 23 in a petition under Article 226 of the Constitution of India to contest the order passed by the Labour Court and the .
judicial review is permissible on the basis of material already placed before the Tribunal.
36. In present case also, petitioner has pleaded certain averments against procedure and practice adopted by the Inquiry Officer during the inquiry but had not placed any material before the Labour Court by filing response to the application or to adduce evidence in support of his claim before the Labour Court despite having opportunity to do so.
Therefore, such grounds introduced in the pleadings of present petition cannot be taken into consideration in a judicial review under Article 226 of the Constitution of India.
37. Learned counsel for petitioner has also argued that in any case, punishment imposed in present case does not commensurate to the alleged misconduct, is highly disproportionate and deserves to be interfered with.
::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 2438. Per contra, learned counsel for respondent Company has relied upon pronouncement of apex Court in .
Divisional Controller, KSRTC (NWKRTC) versus A.T. Mane, reported in (2005) 3 Supreme Court Cases 254, wherein it has been held that one should bear in mind the fact that it is not the amount of money misappropriated that r to becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is primary factor to be taken into consideration. It has further been held that when a person is found guilty of misappropriating the corporation's funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.
39. Reliance has also been placed on M.G. Vittal Rao's case (supra), wherein after considering catena of judgments, the apex Court has held that once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 25 that discharging the office of trust and confidence requires absolute integrity, and in a case of loss of confidence, .
reinstatement cannot be directed. It has further been held that it is a settled legal proposition that in a case of misconduct of grave nature, like corruption or theft, no punishment other than dismissal may be appropriate.
40. In present case, during domestic inquiry, petitioner had been found guilty of charges of causing loss to the respondentCompany by making wrong entries of working hours of the tractor, the said inquiry report was accepted by the authority and the petitioner has not substantiated his objections by leading sufficient evidence before the Labour Court.
41. For aforesaid discussion and settled law of land, no case to interfere with conclusion returned by the Labour Court and the Inquiry Officer with regard to domestic inquiry is made out.
42. There is another aspect to be looked into necessarily. It is not only the workman who suffers but ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 26 there are his family members who are also sufferers of any action taken against the workman. Even if the management .
had lost faith in the petitioner and was considering his presence as a threat to his officers or to the work culture, then also it was not appropriate to deprive him from other benefits of his long service and it would have been
43. to appropriate to remove him alongwith terminal benefits.
The Court has an obligation to consider as to whether punishment imposed upon a workman is proportionate to his misconduct and at the time of considering the same, other relevant factors are also necessary to be considered.
44. Petitioner was employee of the lowest rank in respondent No. 2Company and though, alleged in the charge sheet, but, there is nothing on record to establish that except present one, the petitioner was ever served with any notice for misconduct or he had involved in committing any misconduct.
::: Downloaded on - 07/05/2018 22:55:03 :::HCHP 2745. Therefore, upholding the removal of petitioner from service, it is directed that all dues, including gratuity, .
leave encashment, unpaid bonus, EPF and pension etc., as admissible under law with reference to length of service of petitionerworkman shall be released by respondent employer to him, in case such dues have not already been paid/released.
46. to Petition is disposed of in aforesaid terms.
Pending applications, if any, are also disposed of accordingly.
(Vivek Singh Thakur) Judge May 05, 2018 ( rajni ) ::: Downloaded on - 07/05/2018 22:55:03 :::HCHP