Allahabad High Court
K.P.Singh vs State Of U.P.And Others on 12 April, 2019
Equivalent citations: AIRONLINE 2019 ALL 694
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 12.12.2018 Delivered on 12.04.2019 Court No. - 34 Case :- WRIT - C No. - 1907 of 1988 Petitioner :- K.P. Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- A.B. Shukla, R.K. Mishra, U.K. Mishra Counsel for Respondent :- S.C.,Sunil Tripathi, Devesh Tripathi, M.H. Qadeer Hon'ble Sudhir Agarwal,J.
1. Heard Sri U.K. Misra and Sri R.K. Misra, learned counsels appearing for petitioner and Sri Sunil Kumar Tripathi, learned counsel for respondent-3.
2. This writ petition under Article 226 of Constitution of India has been filed by sole petitioner- K.P. Singh, who is aggrieved by award dated 10.10.1986 passed by Labour Court, II, Kanpur, U.P. in Adjudication Case No. 11/82 answering reference made to it by upholding dismissal of petitioner and awarding a lump sum compensation of Rs. 35,00/-.
3. Facts, in brief, giving rise to present writ petition are that petitioner was employed as Fitter Grade II in Maintenance Department of M/s Ralli Chemical Limited, Magarwara, Unnao, which now stands, transferred to M/s Jay Shree Tea Industries Limited (hereinafter referred to as "Employer"). Petitioner was elected as General Secretary of Unnao Chemical Employees Union, Magarwara, Unnao, a registered Trade Union, in June, 1979. A show cause notice was issued to petitioner on 19.07.1979 by Manager of Employer requiring him to show cause as to why he refused to fabricate one feed line for cell house in hydroplant on 16.07.1979 at 09:30 am and remained idle which amounts to gross misconduct and breach of duty. Petitioner replied said notice vide letter dated 23.07.1979 by denying charge. He said that in fact he was misbehaved by concerned official by not providing an Assistant to him though he was in the status of Fitter Grade-II. Subsequently a charge sheet dated 25.07.1979 was issued to petitioner under the signature of Manager containing following charge:
"It has been reported Mr. U.C. Tripathi, ME that at about 9.30 a.m. on 16.7.1979 he asked you to do the job. After your oral refusal, you were served with a written job order also to carry out the above job but you remained idle whole day and did not carryout any job whatsoever including the above job entrusted to you.
In the morning on 16.7.1979 when the above job was entrusted to you, you were very much insubordinate to Mr. U.C. Tripathi and had even said "aap nalayak Hain. Engineer ko Karmchariyon se kam tak lene ki tamiz nahin hai" All the above incident was witnessed by Mr. R.N. Yadav, Senior Shift/Supdt."
Your above gross acts of misconduct amount to serious bread of discipline as you have refused to perform your duties, disobeyed and instruction of your superior, remained idle and wasted whole day without carrying out any job, and were even insubordinate to Mr. U.C. Tripathi, M.E."
4. Vide letter dated 26.07.1979, petitioner sought some more time to file reply and also seeks permission to engage Sri Arvind Kumar as Defence Assistant. One Sri K.P. Tripathi was appointed by Employer to conduct inquiry. Against appointment of Sri K.P. Tripathi as Inquiry Officer petitioner protested and made request for change of Inquiry Officer vide letter dated 27.07.1979. Vide letter dated 27.07.1979 Manager of Employer denied to accept Arvind Kumar as Defence Assistant on the ground that he was an outsider and engagement of outsider as Defence Assistant is not permissible. He said that petitioner may choose a Defence Assistant from the employees of Employer.
5. A fresh charge sheet was served upon petitioner vide letter dated 02.08.1979 containing following charges:
"On 18.07.1979 at about 09.00 a.m. when you were in your general shift duty, maintenance Engineer Mr. U.C. Tripathi, entrusted you to carry out job order pertaining to fabrication of two feed lines in the cell house in Hydro plan. Mr. S.B. Tripathi, entrusted you to carry out a job order pertaining to fabrication of two feed lines in the cell house in Hydroplant. Mr. S.B. Shukla, Senior Shift Superintendent, Hydroplant delivered the above job order to you. You, however, expressed your refusal to perform the above job entrusted to you and did not actually fabricate the said feed lines of cell house at all. Thus you wasted you whole day on 18.7.1979 malingering idle in the plants and did not perform any work whatsoever including the above job which along was entrusted to you.
Further on 19.07.1979 at about 10:00 A.M. Mr. T.S. Laxmananchar Maintenance Foreman again asked you to carry out the above fabrication job of two feed lines of cell house of Hydroplant as entrusted to you by Mr. U.C. Tripathi, Maintenance Engineer on 18.07.1979, but you again refused to take up the job. Then Mr. T.S. Laxmananchar Maintenance Foreman at about 01.30 P.M. on 19th July 1979 gave you a written order (copy enclosed) for fabrication of the above two feed lines, but you even refused to accept this written order of Mr. T.S. Lachmanachar, Maintenance Foreman after reading its contents in the presence of Dr. M.M. Agarwal, Development Chemist, Mr. S.D. Mishra, Electrical Supervisor and Mr. J. Shivaram Sheshasai, Maintenance Foreman.
On 19.09.1979 thus again you did not perform any work at all and wasted whole day and did not even carry out the above job of fabrication of two feed lines. This has adversely affected the work of the Department causing huge loss of production.
Thus your acts of refusal to perform your duties i.e. the jobs performed by you earlier willful disobedience of the orders of your superiors, remaining idle and malingering in the plant, wasting time without carrying out any job as above, and causing huge loss of production deliberately and willfully etc. and amount to gross acts of misconducts."
6. This charge sheet was also replied by petitioner vide letter dated 03.08.1979 stating that disciplinary proceeding is motivated and premeditated with a view to remove petitioner from service. Against Inquiry Officer petitioner made further complaint vide letter dated 24.09.1979 and requested for his change.
7. When inquiry was pending, petitioner made an application/ complaint before Additional Labour Commissioner, Kanpur Region, Kanpur vide letter dated 12.10.1979 in which, besides other, dispute with regard to disciplinary inquiry against petitioner was also raised. Employer submitted reply dated 03.11.1979 before Conciliation Officer stating that there is no such dispute which may be subject matter of an industrial dispute.
8. When matter was pending before Conciliation Officer, Employer passed order dated 25.01.1980 dismissing petitioner from service w.e.f. 25.01.1980 holding him guilty in disciplinary proceedings on both charge sheets dated 25.07.1979 and 02.08.1979.
9. Against aforesaid dismissal, petitioner alongwith another workman, Achche Lal Kushwaha, raised an industrial dispute which was referred vide Government Order dated 13.05.1980 under Section 4-K of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as "Act, 1947") for adjudication by Labour Court, U.P. V, Kanpur but was subsequently transferred to Labour Court U.P. II, Kanpur. The following reference was made:
^^D;k lsok;kstdksa }kjk vius Jfed vPNsyky dq'kokgk ¼iq= Jh cPpw yky dq'kokgk½ dkMZ ua0 197 IykUV vVsUMsUV rFkk d`".k izdk'k flag ¼iq= Jh jkt cgknqj flag½ dkMZ ua0 172 fQVj esUVhusal foHkkx dh lsok;sa dze'k% 2-2-80 o 25-1-80 ls lekIr fd;k tkuk mfpr rFkk @ vFkok oS/kkfud gS\ ;fn ugha] rks lEcfU/kr Jfed D;k ykHk @ vuqrks"k ¼fjyhQ½ ikus ds vf/kdkjh gSa rFkk fdl vU; fooj.k lfgr\** "Whether the termination of services by the employers of their labourers Acchhelal Kushwaha (son of Shri Bacchho Lal Kushwaha), Card No. 197, Plant Attendant and Krishna Prakash Singh (son of Shri Raj Bahadur Singh), Card No. 172, Fitter, Maintenance Department from 02.02.1980 and 25.01.1980 is proper and/or legal? If so, what benefit/relief the labourers are entitled to and with which other details?" (English Translation by Court)
10. Following three issues were framed by Labour Court:
^^1- D;k lsok;kstdksa }kjk loZJh d`".k izdk'k flag ,oa vPNs yky dq'kokgk] fookfnr Jfedksa ds fo:) dh xbZ ?kjsyw tkWap mfpr rFkk uSlfxZd U;k; ds fl)kUrksa ds vuq:i gS\ 2- D;k lsok;kstdksa us nqHkkZouk ls izsfjr gksdj fookfnr Jfedksa dks cj[kkLr fd;k gS\ 3- D;k izLrqr lUnHkkZns'k lsok;kstdksa ds fyf[kr dFku ds izR;qRrj 1 vkSj 2 esa mfYyf[kr dkj.kksa ls fof/k dh n`f"V esa nks"kiw.kZ gS\** "1. Whether the internal inquiry conducted by the employers against the disputed employees Shri Krishna Prakash Singh and Shri Achhey Lal Kushwaha is appropriate and is in accordance with the principles of natural justice?
2. Whether the employers have dismissed the disputed employees being prompted by ill-will?
3. Whether the instant order in reference is flawed from the legal point of view for the reasons mentioned in replies 1 and 2 to the written statement of the employers?" (English Translation by Court)
11. Issues-1 and 2 were decided against Workman, i.e., petitioner vide order dated 24.11.1982. Labour Court held that disciplinary proceeding conducted in accordance with principle of natural justice and there is no element of bias in imposing punishment of dismissal upon Workman. This order is Annexure-23 to the writ petition. Thereafter question of quantum of punishment was examined and vide award dated 10.10.1986, wherein order dated 24.12.1982 was made part of award, Labour Court held that reinstatement of Workman would not be justified even though punishment imposed appears to be somewhat excessive but looking to entirety and backdrop of the matter it will be justified if a lump sum compensation of Rs. 3500/- is awarded to Workman. The award dated 10.10.1986 has been published on the notice board on 03.06.1987 and supplied to parties vide letter dated 09.06.1987. This award is Annexure-24 to the writ petition.
12. Respondents-3 and 4 both have filed separate counter affidavits. It is said that M/s Rallis India Limited, Respondent-3 had a manufacturing unit in the name of M/s Ralli Chemical Factory at Magarwara, Kanpur. However aforesaid factory has been purchased by Respondent-4 on 01.03.1984 pursuant to an agreement for sale dated 09.06.1983. It is further stated that disciplinary proceedings have been conducted after due opportunity to workmen and in any case, since respondent-3 is no more owner of factory, reinstatement of petitioner cannot be directed and in any case, award of Labour Court warrants no interference.
13. In the counter affidavit filed by respondent-4, it is said that petitioner was employee of respondent-3. Pursuant to Agreement to sale dated 09.06.1983, sale deed/ transfer deed was executed in 1984 and factory in question was transferred to respondent-4. It is one of the stipulation in agreement that effective date of transfer shall be 30 days from the date of approval, referred to in Clause-17, is received and purchaser shall offer and agree to engage employee of respondent-3 i.e. vendor with such terms and conditions as were available on the effective date. Clause-7 of Agreement which is Annexure-1 to the counter affidavit of respondent-4, reads as under :-
"7. The Purchaser shall offer/and agree to engage/employ the employees of the Vendor in the non-management cadre and who are in the employment of the Vendor (as confirmed by the Vendor) at the said Chemical Factory on the Effective Date, on terms not less favourable to such employees than the terms of employment which such employees enjoyed as at the Effective Date, with all benefits of continuity of their service so that their services are not interrupted or deemed to have been interrupted by such transfer and in the event of their being subsequently retrenched by the Purchaser they become entitled to get from the Purchaser and the Purchaser shall be liable to pay them retrenchment compensation under Section 25F of the Industrial Disputes Act, 1947, on the basis that their services have been continuous from the date of their appointment by the Vendor and have not been interrupted by such transfer and no retirement or retrenchment compensation may become payable by the Vendor to any of such employees who take up employment of the Purchaser on that behalf." (Emphasis Added)
14. Learned counsel for petitioner besides oral arguments, has also filed written argument and issues raised therein are :
(i) Petitioner was a Secretary of Workers' Union, therefore, falsely implicated in disciplinary proceedings and this is nothing but victimization.
(ii) Show-cause notices and other documents were in English. Petitioner requested to supply documents in Hindi but said request was turned down. It amounts to denial of adequate opportunity of defence.
(iii) Copy of Enquiry Report along with show-cause notice was never supplied to petitioner, before award of punishment. It also amounts to violation of principles of natural justice. On this aspect, learned counsel for petitioner has placed reliance on a Constitution Bench Judgment in Managing Director, ECIL, Hyderabad v. B. Karunakar 1993 (4) SCC 727.
(iv) The proceedings of conciliation were pending before Conciliation Officer when disciplinary proceedings are concluded and, therefore, impugned order amounts to change of condition of service and breach of Section 6-E of Act,1947.
(v) Petitioner's services were dismissed on the ground of loss of confidence but Labour Court has made out a new ground to justify dismissal, which is erroneous. On this aspect, reliance is placed on Management of Panitola Tea Estate v. Workmen 1971 (1) SCC 742; this Court's judgment in Sadhan Sahakari Samiti Basantpur Limited vs. Presiding Officer, Labour Court 1993 (2) LLJ 468 (All); Hindustan Aeronautics Limited v. State of U.P. 1993 (2) LLJ 340 (All) and Gujarat High Court's Judgment in R.M. Parmar v. Gujarat Electricity Board 1983 (1) LLJ 261 (Guj).
(vi) Since for the purpose of punishment, allegations which were not part of charge-sheet were taken into consideration and this fact is admitted by Labour Court also, hence, upholding of dismissal is patently illegal. Reliance is placed by learned counsel for petitioner on Rama Kant Misra Vs. State of U.P. and Others 1982 (3) SCC 346.
15. Learned counsel appearing on behalf of respondent-3 contended that enquiry proceedings were upheld being consistent with principles of natural justice and; it was not open to Labour Court to interfere with quantum of punishment; there is no provision under conditions of service or Standing Orders for giving a notice before imposition of punishment; non supply of enquiry report is not shown to have caused any prejudice to petitioner; for violation of Section 6-E, remedy was available under Section 6-F which has not been availed; and, lastly, since factory itself is no more in ownership of respondent-3, petitioner cannot be given any relief of reinstatement in the factory in question. Sri Sunil Kumar Tripathi, learned counsel appearing for respondent-3 has placed reliance on decisions in M.L. Singla Vs. Punjab National Bank AIR 2018 SC 4668; Management of Bharat Heavy Electricals Limited v. M. Mani 2018 (1) SCC 285; Deputy Commissioner, KVS and Others Vs. J. Hussain 2013 (10) SCC 106; U.B. Gadhe and Others vs. Gujarat Ambuja Cement (P) Ltd. 2007 (13) SCC 634 and State of Tamil Nadu and Another Vs. M. Mangayarkarasi and etc. 2018 (15) SCALE 892.
16. Considering rival submissions, in my view, following issues need be answered :
(1) whether by not supplying Hindi translation of documents, there is denial of adequate opportunity to petitioner?
(2) Whether non-supply of enquiry report vitiates order of punishment being in violation of principles of natural justice ?
(3) Whether there was violation of Section 6-E of Act, 1947 and therefore, dismissal order is vitiated in law ?
(4) Whether Tribunal was justified in confirming order of dismissal though recording its finding that punishment is excessive to the nature of charge and incidents which were not part of charge-sheet have been taken into consideration for imposing penalty of dismissal.
(5) What relief in any case, if order of dismissal is not justified, petitioner would be entitled in the peculiar facts and circumstances of the case where factory has been transferred to another Employer?
17. Now, considering question-1, I find that Annexure-1 is a notice issued to petitioner by Employer on 17.07.1979 and it is in English. Petitioner's reply is Annexure-2 to the writ petition, which is dated 20.07.1979. It is true that petitioner has replied in Hindi but has categorically said that petitioner has read show-cause notice and surprised since allegations are baseless. Relevant extract of petitioner's reply dated 20.07.1979 reads as under :-
^^vkidk mijksDr i= fuEu gLrk{kjdrkZ ds fnukad 16-7-79 dks izkIr gqvkA mijksDr i= esa yxk;s fujk/kkj vlR; cscqfu;kn rFkk eux<+Ur vfHk;ksxksa dks i<+dj eSa vk'p;Z esa gwWaA** "The aforesaid letter of yours was received by the undersigned on 16.07.1979. I am surprised to read the baseless, false, unfounded and concocted allegations levelled in the aforesaid letter."
(Emphasis Added) (English Translation by Court)
18. At the bottom of Annexure-2, though petitioner has said that letters should be given to petitioner in Hindi but it is not stated anywhere that he cannot read and understand English or he got show-cause notice dated 17.07.1979, read and translated to him, by some other person.
19. Similarly again, Annexure-4 is Employer's letter dated 25.07.1979 which is in English. Here again, petitioner has read the said letter and replied by letter dated 26.07.1979 (Annexure-5 to the writ petition). It has clearly said that he has not only read and understood notice but has also submitted reply appreciating the facts stated in Employer's letter. Then, Management's letter dated 27.07.1979 (Annexure-7 to writ petition) and 19.07.1979 (Annexure-8 to the writ petition) are also in English. Even charge-sheet was in English. Petitioner submitted reply vide Annexure-9. Though petitioner's reply is in Hindi but it nowhere raise any complaint that petitioner was not capable to understand the contents of charge-sheet. Here also, I do not find any request of petitioner that he is not capable of reading a document written in English, therefore, documents should be supplied to him in Hindi.
20. Grievance of petitioner that documents were not supplied in Hindi and, therefore, principles of natural justice have been violated, is nothing but a pretext which has no factual basis. Therefore, I have no hesitation in rejecting the same and to hold that there is no violation of principles of natural justice since petitioner was well capable of reading and understanding English and had submitted replies after reading and understanding documents sent by Employer in English. Question-1, therefore, is answered against petitioner.
21. Now, coming to question-2, I find that reply to this question is contained in the Constitution Bench Judgment in Managing Director ECIL, Hyderabad (supra). The law that before imposing punishment, if enquiry report holds charge proved, then copy of Enquiry Report must be supplied to employee giving opportunity to reply, was firstly laid down in Union of India v. Mohd. Ramjan Khan 1991 (1) SCC 588, which was decided on 20.11.1990. One of the question formulated by Constitution Bench reproduced in para 2(vii) of the judgment reads as under :-
"2(vii) Since the decision in Ramjan Khan's case has made the law laid down there prospective in operation i.e., applicable to the orders of punishment passed by November, 20,1990, on which day the said decision was delivered, this question in turn also arisen another question viz., but what was the law prevailing prior to November, 20, 1990 ?"
22. It was replied in para-75 by holding that the ratio given in Mohd. Ramjan Khan (supra) would apply prospectively from the date of the judgment only and would apply to the cases in which decisions are taken and orders made from that date and would not apply to matters which either have become final or are pending decision at appropriate Forum or at High Court or in Tribunal or before this Court.
23. In the present case, punishment order of dismissal was passed on 25.01.1980 i.e. much long back and much prior to the date of decision in Mohd. Ramjan Khan (supra). Therefore, law laid down therein has no application to the case in hand and the proceedings in the case in hand as also punishment order cannot be held vitiated in law for non supply of Enquiry Report. Question-2, therefore, is answered against petitioner.
24. So far as third question is concerned, if petitioner had any grievance that his conditions of service have been altered to his detriment during pendency of conciliation before Conciliation Officer and there is any violation of Section 6-E of Act, 1947, remedy was available under Section 6-F of Act, 1947. Disciplinary proceedings were already going on and resulted in final order by means of order of punishment.
25. Section 6-E of Act, 1947 reads as under:-
"6-E. Conditions of service, etc. to remain unchanged in certain circumstances during the pendency of proceedings. - (1) During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal in respect of an industrial dispute, no employer shall, -
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding, or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, -
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding, or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise :
Provided 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 the action taken by the employer.
(3) Notwithstanding anything contained in sub-section (2) no employer shall during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute, -
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding, or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, such with the express permission in writing of the authority before which the proceeding is pending.
Explanation. - For the purposes of this sub-section, a 'protected workman' in relation to an establishment, means a workman who, being an officer of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to be recognized as protected workmen for the purposes of sub-section (3) shall not exceed one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the State Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which they may be chosen and recognized as protected workmen.
(5) Where an employer makes an application to a Board, Labour Court or Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, as expeditiously as possible, such order in relation thereto as it deems fit."
(Emphasis Added)
26. Copy of application whereby dispute was raised before Additional Labour Commissioner (Conciliation Officer) is Annexure-20 to writ petition which does not show that in respect of allegations constituting misconduct stated in two charge sheets any dispute was raised. Para- 4 only relates to inquiry initiated against petitioner and reads as under:
^^4- lsok;kstd ;wfu;u ds eU=h feLVj ds0ih0 flag dks vuko';d :i ls tkWap ds uke ij fuyfEcr fd;s gSa rFkk mUgsa fodVekbt djus ds fy, mUgksaus tkWap dh dk;Zokgh dks tcjnLrh ,Dl ikVZ dj fn;k gS ftlls mudh fu;r dk irk pyrk gS fd og iw.kZ:is.k feLVj ds0ih0flag dks fodVekbt djuk pkgrs gSaA blhfy, og dksVZ esa okrkZ ds fy, Hkh mifLFkr ugha gq, gSA vr% /;ku nsaA** "4. The employers have unnecessarily placed the Union Secretary Mr. K.P. Singh under suspension on the pretext of inquiry; and in order to victimize him, they have blatantly conducted the inquiry proceeding ex-parte, which is reflective of their intention to victimize Mr. K.P. Singh in toto. Hence, they haven't appeared before the court even for deliberations. Hence, please take note." (English Translation by Court)
27. In these circumstances, this Court has to examine, whether Section 6-E is attracted or not.
28. Section 6-E(1) clearly shows that during pendency of any conciliation proceeding no employer shall, for any misconduct connected with dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which proceeding is pending. It thus talks of a "misconduct connected with dispute". Here the charges contained in two charge sheets were not subject matter of dispute and despite repeated query, learned counsel for petitioner could not show any such connection. Therefore, apparently Section 6-E of Act, 1947 is not applicable in the case in hand.
29. Moreover, it does not place a complete embargo upon power of Employer but provide that with permission in writing of authority concerned, an order of discharge or punishment can be passed. Having gone through entire record, I do not find and none could not pointed out by learned counsel for petitioner that any such ground was taken before Labour Court that requisite permission from Conciliation Officer was not taken by Employer and, therefore, Section 6-E has been violated. This factual dispute cannot be allowed to be raised for the first time before this Court. I have no manner of doubt in observing that aforesaid provision cannot be resorted to a case where departmental enquiry was already going on and final order is passed for the reason that it is always open to employee to challenge final order in appropriate proceedings but it cannot be said that conditions have been changed during pendency of proceedings of conciliation before Conciliation Authorities for the reasons that disciplinary proceedings was already initiated and punishment order is only culmination of those proceedings and nothing else. I find it difficult to hold that impugned order of punishment is liable to be set aside on this ground. Question-3 is also answered against petitioner.
30. Now, coming to questions-4, on this aspect, I really find something in favour of petitioner. While confirming order of dismissal, Labour Court in its award dated 10.10.1986 has clearly said in para-9 as under :-
^^9- bl ekeys esa leLr vHkys[kksa ,oa i=ktkrksa dk v/;;u djus ls ;g ladsr feyrk gS fd lsok;kstdksa us lEcfU/kr Jfedksa dks fnukad 25-4-80 dh ?kVuk tks izfr"Bku ds ckgj gqbZ gS vkSj ftlds izlax esa iqfyl dsl Hkh pyk gS mlds ifjizs{k esa izfr"Bku ds vUnj gqbZ vU; ckrksa dks ysdj tkWap dk;Zokgh lqfuf'pr djus ds i'pkr mUgsa nf.Mr fd;k x;k gS ;|fi eq[; ?kVuk tks lsok;kstdks dks bl lEcU/k esa lEHkor% izsfjr dj jgh Fkh mlds izlax esa dksbZ vfHk;ksx i= ugha fn;k x;k gS vkSj bl izdkj tks n.M izfdz;k viukbZ xbZ gS og dyjsfcy ,Dljlkbt izrhr gksrh gSA** "9. An appreciation of all the records and papers in this matter indicates that the employers have punished the concerned labourers after having ensured enquiry proceedings to be held over other things which have transpired within the establishment in the backdrop of the incident which occurred outside the establishment on 25.04.1980 and in respect whereof a police case has also proceeded. However, with respect to the main incident which was possibly motivating the employers, no charge-sheet has been given; and thus, the process of punishment that has been adopted appears to be a colourable exercise." (Emphasis Added) (English Translation by Court)
31. Once Tribunal found that certain incidents which were not subject matter of enquiry have been taken into consideration to impose punishment upon workman and punishment order amounts to colourable exercise, I find no justification on the part of Labour Court to uphold such an order. It is now well settled that an act and omission in respect whereto no charge-sheet has been issued and enquiry has not been conducted, a punishment cannot be passed. Such allegation(s) cannot be taken into consideration to punish a workmen. It amounts to punishing a person on an act and omission in respect whereto workmen had no opportunity of defence and in fact in respect whereto even Employer had not taken any proceedings to prove the charge and still workmen has been punished.
32. In fact, above observations of Labour Court were sufficient to hold that dismissal order is bad in law. When a punishment order is found a colourable exercise, it goes to the root of validity of such punishment order and in such a case there would not have been any requirement to consider whether punishment commensurate to charge levelled against workman concerned, or excessive.
33. It is true that Labour Court's power is wider and instead of granting relief of reinstatement it may grant other relief but that is a different aspect. Labour Court, in my view, in the present case, erred in law in not holding order of dismissal, bad in law.
34. The question-4, therefore, I have no hesitation in answering in favour of petitioner and award of Labour Court, insofar as it has justified order of dismissal, despite recording finding that incidents which were not subject matter of charge were taken into consideration to impose punishment of dismissal and, therefore, it is colourable exercise, is clearly unjust and illegal.
35. This leads now to question-5. Power of Labour Court to grant relief when an order of punishment is found vitiated in law are still wide. Relief of reinstatement is not automatic since various aspects are also to be taken into account. In the present case, record shows that there are cross allegations on the part of employee and Employer, going to the extent of refusal to obey orders of Superior Authorities and creating disturbance in the Unit. Furthermore, this fact also cannot be ignored that industrial Unit in which petitioner was working has now changed hands and now respondent-3 is no more Employer. Industrial Unit has gone in the hands of respondent-4. The purpose of adjudication of industrial dispute is to maintain industrial peace and harmony and not to continue or sustain it. Therefore, in the facts and circumstances of the case, though, award of Labour Court in sustaining order of dismissal, for the reasons stated therein, cannot be justified but I am in agreement with Labour Court that instead of reinstatement, a lumpsum compensation may be awarded to workmen for wrongful dismissal.
36. At this stage I may also examine various authorities relied by parties in the context of Question-5.
37. In Management of Panitola Tea Estate (supra) Supreme Court has upheld proposition of law that general rule, in absence of any special circumstance, is reinstatement where order of dismissal is found bad. In exercise of this discretion fair play towards employee, on the one hand, and interest of employer, including considerations of discipline in the establishment, on the other, require to be duly safeguarded. Court said that this is necessary in the interest of both, for security of tenure of employee and smooth and harmonious working of establishment. Court held, "legitimate interests of both of them have to be kept in view if the order is expected to promote the desired objective of industrial peace and maximum possible production. The past record of the employee, the nature of the alleged conduct for which action was taken against him, the grounds on which the order of the employer is set aside, the nature of the duties performed by the employee concerned and the nature of the industrial establishment are some of the broad relevant factors which require to be taken into consideration. The factors just stated are merely illustrative and it is not possible to exhaustively enumerate them. Each case has to be decided on its own facts and no hard and fast rule can be laid down to cover generally all conceivable contingencies. Proper balance has to be maintained between the conflicting claims of the employer and the employee without jeopardising the larger interests of industrial peace and progress. "
38. In Hindustan Steels Ltd., Rourkela vs. A.K. Roy and Ors. 1969(3) SCC 513, Court instead of reinstatement passed an order of payment of compensation.
39. In Sadhan Sahakari Samiti, Basantpur Limited (supra) a learned Single Judge of this Court said:
"the Labour Court has discretion to decline to grant the final relief of reinstatement and may award compensation in lieu thereof, if it is satisfied that, on the facts and circumstances of the case, reinstatement will be expedient or improper."
40. Similarly in Hindustan Aeronautics Limited (supra) this Court said:
"Labour Court/Tribunal is vested with wide discretion in the matter of granting relief keeping in view the facts and circumstances of the case. And in exercise of its wide discretion it may award compensation in lieu of reinstatement if on the facts and circumstances of the case reinstatement is found undesirable and inappropriate. "
41. Therefore, law is well settled that though normally reinstatement is the relief to be granted when an order of termination is held bad but in a given case, instead of reinstatement, compensation can be awarded. In the present case Labour Court has considered this aspect and looking to entire backdrop of dispute, as also the fact that Employer has already transferred unit to another Employer with certain conditions with regard to employees and other relevant factors has said that it is not justified to award reinstatement. It has exercised its discretion in awarding compensation and I find no reason to interfere therewith except the quantum of compensation since in my view amount of compensation awarded by Labour Court is meagre and on much lower side.
42. Labour Court has awarded only Rs. 3500/- which in my view, cannot be said to be holistic, reasonable and adequate lumpsum compensation. Therefore, I modify impugned award and provide that Employer shall pay a lumpsum amount of Rs.1,25,000/- to petitioner in lieu of relief of reinstatement. Award of Labour Court dated 10.10.1986, impugned in the present writ petition is accordingly modified.
43. Writ petition is partly allowed in the manner as aforesaid. Petitioner shall also be entitled to cost which I quantify to Rs. 2,000/-.
Order Date :- 12.04.2019 Siddhant Sahu/AK