Madhya Pradesh High Court
M.P.P.K.V.V.Co.Ltd. vs Decd.Bagdiram Thru.Lrs. Smt.Sumitra ... on 19 January, 2018
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
W.P.No.1856/2017
M.P.P.K.V.V.Co.Ltd. vs.Bagdiram through L.Rs Smt.Sumitrabai. & 3 ors.
Indore
19.01.2018
Shri M.S.Dwivedi, learned Counsel for the petitioner.
None for the respondent, though served.
Heard on the question of admission.
The petitioner has filed the present petition being aggrieved by order dt. 3.10.2016 passed in Case No. 7/UD/Claim/2014 by Labour Court Dhar.
The petitioner is a company incorporated under the name of M.P.P.K.V.V.C.L and wholly owned and controlled by the Government of M.P. The aforesaid company came into existence after closure and bifurcation of M.P. State Electricity Board. The petitioners company undertakes the activities of distribution of State of electricity to its consumers.
Late Shri Bagdiram, was an employee of erstwhile M.P. State Electricity Board, by virtue of his appointment on the post of Assistant Lineman vide order dt. 16.11.1989. When he was posted at Badnawar Rural Distribution Center he remained unauthorisedly absent from 22.10.2006 without any intimation or notice to the Department. Despite notices issued by the Assistant Engineer, he did not attend the duties. He was served with to letters/notices directing him to resume the duty and explain the reasons for unauthorised absence. Thereafter he was served with the charge sheet levelleling two charges in respect of his unauthorised absence from 22.10.2006 and his previous conduct in respect of habitual absence.
The delinquent did not submit any reply to the charge sheet and the Enquiry Officer and Presenting Officer were appointed for commencement of departmental enquiry. The Enquiry officer issued notice to the delinquent for his appearance on 28.3.2007 and 3.4.2007 and submitted that he was suffering from Tuberculosis and was under treatment. In support of his defence, he has filed certain medical papers and the fitness certificate issued by the Doctor on 17.2.2007.
After recording the evidence, the Enquiry Officer submitted his enquiry report dt. 21.4.2007 to the Disciplinary Authority. A second show-cause notice dt. 27.4.2007 was issued to the delinquent proposing the punishment of dismissal from service. The petitioner did not submit any reply to the second show-cause notice. The Disciplinary Authority has passed the punishment order dt. 27.4.2007 dismissing him from the service.
Late Shri Bagdiram, preferred an appeal to the Higher Authorities and made attempt to submit joining but the same was not accepted. Thereafter he raised a dispute under Section 10(1) of the Industrial Disputes Act before the Labour Commissioner. Before the Assistant Labour Commissioner could initiate the conciliation proceeding Late Shri Bagdiram, directly approached the Labour Court under Section 2-A(2) of the Industrial Disputes Act, 1947.
Claimant Late Shri Bagdiram, as well as the present petitioner submitted their claims respectively. On the basis of the rival submissions of the parties, the learned Labour Court framed as many as 6 issues and vide order dt. 22.8.2016 has held that the departmental enquiry conducted against the delinquent is null and void. Thereafter Labour Court granted an opportunity to the petitioner/employer to prove the misconduct before the Labour Court. The petitioner gave the evidence in respect of the charges and the misconduct and vide award dt. 3.10.2016 the Labour Court has quashed the order of dismissal dt. 17.7.2007 and directed the petitioner to reinstate him into the service without back wages. Being aggrieved by the said order dt. 3.10.2016, the petitioner has preferred this petition before this Court.
After the said award, the delinquent Shri Bagdiram, has expired on 18.1.2017 and he could not get the fruit of award. The petitioner has filed the present petition against the legal heir of Late Shri Bagdiram, challenging the award dt. 3.10.2016.
The petitioner has assailed the order of Labour Court on the ground that the learned Labour Court has wrongly vitiated the domestic enquiry as illegal for want of non-examination of Enquiry Officer. The petitioner has produced enough material before the Court by way of oral as well as documentary evidence in respect of unauthorised absence of Late Shri Bagdiram.
It is further submitted that the regular departmental enquiry was conducted against the employee in which he has failed to produce any material to prove his illness during period of absentism. The learned Labour Court has travelled beyond its jurisdiction by declaring the domestic enquiry as void and also wrongly set-aside the order of punishment. The Labour Court has not properly appreciated the medical certificate and fitness certificate. Even after issuance of fitness certificate dt. 17.2.2007 he did not submit his joining and resume the duties therefore, looking to his past conduct the punishment is justified hence, the impugned order is liable to be set-aside.
I have perused the record of the Labour Court which contains the statement of claim, written statement, documentary evidence as well as the oral evidence.
As per pleading in the statement of claim filed under Section 10 before the Labour Court , the delinquent was suffering from Tuberculosis since 2007. When he reported for duty on 25.5.2009 he was denied by the Higher Officers on the ground that he is suffering from Tuberculosis. Thereafter he again reported for duty on 29.12.2012 then also he was not permitted to join. The petitioner filed the written statement by submitting that the delinquent is habitual absentee and earlier he was punished with punishment of stoppage of two increments. He remained absent from 22.10.2006 without any information and permission and after 7 years, he submitted an application for joining on baseless reasons. In support of the claim, the delinquent examined himself he submitted documents relating to his treatment as Ex.P/1 to Ex.P/15. Application for medical leave from Ex.P/16 to Ex.P/26. In defence, the petitioner examined Junior Engineer Shri J.P. Sharma. In cross-examination, he has admitted that he cannot explain how the Ex.D/1 to Ex.D/4 were served to the delinquent and it is correct that no document has been filed to prove the acknowledgment of the notices issued to the delinquent. The learned Labour Court after going through the documentary evidence came to the conclusion that from 22.10.2006 to 5.3.2009 the delinquent was suffering from Tuberculosis and when he has been declared fit, he was not permitted to join by the Higher Officers therefore, despite having fitness certificate, he was wrongly denied the joining. The delinquent remained absent because of his illness and in support of his illness, he has produced all the prescriptions and the documents relating to his treatment as Ex.P/1 to Ex.P/26. Most of the certificates were issued by the Government Doctors therefore, the punishment of termination is highly excessive and harsh. The learned Labour Court has rightly set-aside and directed for reinstatement without back wages.
Even otherwise, this Court in exercise of power under Article 227 of the Constitution of India cannot act as Appellate Court to re-appreciate the evidence. The Apex Court in the case of Shalini Shyam Shetty and another vs. Rajendra Shankar Patil reported in (2010) 8 Supreme Court Cases 329 in para 38,39,40,41,42,43 and 49-(c) and (d) held as under:-
38. The subsequent Constitution Bench decision of this Court on Article 227 of the Constitution, rendered in State of Gujarat v. Bakhatsinghji Vajesinghji Vaghela also expressed identical views. Bachawat, J. speaking for the unanimous Constitution Bench opined that the power under Article 227 cannot be fettered by the State Legislature but this supervisory jurisdiction is meant to keep the subordinate tribunal within the limits of their authority and to ensure that they obey law.
39. So the same expression, namely, to keep the courts and tribunals subordinate to the High Court. "within the bounds of their authority" used in Manmatha Nath Biswas, to indicate the ambit of High Court's power of superintendence has been repeated over again and again by this court in its Constitution Bench decisions.
40. Same principles have been followed by this Court in Mani Nariman Daruwala v. Phiroz N.Bhatena, wherein it has been held that in exericse of its jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case wshere there isno evidence or where no reasonable person could possibly have come to the conclusion which the court or tribnunal has come to. This Court made it clear that except to this "limited extent" the High Court has no jurisdiction to interfere with the findings of fact (see SCC pp.149-50, para 18). In coming to the above finding, this Court relied on its previous decision rendered in Chandavarkar Sita Ratna Rao v.
Ashalata S. Guram. The decision in Chandavarkar is based on the principle of the Constitution Bench judgments in Waryam Singh and Nagendra Nath discussed above.
41. To the same effect is the judgment rendered in Laxmikant Revchand Bhojwani v. Pratapsing Mohansingh Pardeshi. In SCC para 9 at pp.579-80 of the Report, this Court clearly reminded the High Court that under Article 227 that it cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.
42. Same views have been taken by this Court in respect of the ambit of High Court's power under Article 227 in Lonand Grampanchayat v. Ramgiri Gosavi (see AIR pp,. 222-34, para 5 of the Report) and the decision of this Court in Jijabai Vithalrao Gajre vs. Pathankhan. The Constitution Bench ratio in Waryam Singh about the scope of Article 227 was again followed in Ahmedabai Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand.
43. In a rather recent decision of the Supreme Court in Surya Dev Rai vs. Ram Chander Rai, a two-Judge Bench of this Court discussed the principles of interference by the High Court under Article 227.Of course in Surya Dev Rai this Court held that a writ of certiorari is maintainable against the order of a civil court, subordinate to the High Court (SCC p. 688, para 19 of the Report). The correctness of that ratio was doubted by another Division Bench of this court in Radhey Shyam v. Chhabi Nath and a request to the Hon'ble Chief Justice for a reference to a larger Bench is pending. But insofar as the formulation of the principles on the scope of interference by the High Court under Article 227 is concerned, there is no divergence of views.
49.(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
In view of the above, the present petition is dismissed. No order as to costs.
(Vivek Rusia) Judge M.Jilla.
Maharukh jilla 2018.01.25 10:58:51 +05'30'