Punjab-Haryana High Court
Gurbachan Singh vs Presiding Officer on 22 January, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CM No.917 of 2013 in/and
CWP No.26214 of 2012
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CM No.917 of 2013 in/and
CWP No.26214 of 2012
Date of Decision: 22.01.2013
Gurbachan Singh
..... Petitioner
Versus
Presiding Officer, Industrial Tribunal,
Bathinda and others
..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. R.C. Sharma, Advocate,
for the applicant-petitioner.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.(Oral)
CM No.917 of 2013 CM is allowed as prayed for and documents are taken on record.
CWP No.26214 of 2012 The petitioner has placed on record the order of dismissal dated 31.12.1997. The order has been passed as a consequence of conviction under Section 304 A IPC read with Sections 279 and 337 of the Indian Penal Code. The sentence has been reduced on appeal to this Court from two years to one year. The order of conviction has become final.
Learned counsel for the petitioner submits that there was a statutory appeal available to the petitioner under the Punjab Civil Services (Punishment and Appeal) Rules, 1970 applicable to Punjab Roadways. He CM No.917 of 2013 in/and CWP No.26214 of 2012 -2- has not availed his statutory remedy.
In Division Controller, Karnataka State Board Transport Corporation, Bangalore Central Division, Bangalore vs. G.M.D. Murthy, 2002(2) CLR 162, a Division Bench of the Karnataka High Court has held that remedies under Section 10 of the Act can be invoked only after statutory remedy of appeal provided under service rules is exhausted in case of discharge, dismissal, retrenchment and termination. It has been reasoned by the High Court as follows:-
"22. An individual workman can take remedial measures under the provisions of the Industrial Disputes Act only in a case where an industrial dispute can be said to be existing within the meaning of Section 2-A of the said Act. This section reads as under:-
"2-A. Dismissal, etc. of an individual workman to be deemed to be an industrial dispute.-- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute".
23. To our mind, the order of discharge, dismissal, retrenchment or termination cannot be said to be giving rise to an industrial dispute so long as management like the Corporation is duty-bound to entertain and resolve the grievance of the workman within the framework of its statutory regulations providing for appeals and revisions. As already noticed above, the workman has a statutory right to assail the order of disciplinary authority on all the grounds which can be raised before the Tribunal or Labour Court under the Industrial Disputes Act.
24. Therefore, we are of the opinion that till the order of discharge, dismissal, retrenchment or termination does not attain its finality up to revisional stage contemplated under Regulation 35 of the Regulations, the action of the Corporation taken against the workman cannot be said to have matured into an industrial dispute entitling the workman to invoke the provisions of reference and adjudication under the Industrial Disputes CM No.917 of 2013 in/and CWP No.26214 of 2012 -3- Act.
25. Taking of the above view will avoid chances of conflicting orders and the Corporation will have full opportunity to rectify any error committed by its officers, may be disciplinary or appellate. This will also reduce the load on the dockets of the Labour Court which are already overburdened. By this process, the Labour Court will have the benefit of views of the appellate and revisional authorities who are duty-bound to take care of all the permissible grievance raised by the workmen in relation to their discharge, dismissal etc., may be regarding the procedure, finding or the quantum of punishment. Therefore, adopting of such a recourse cannot in any way prejudice the cause of the workman rather it will facilitate him to get his grievances properly ventilated before the authorities of the Corporation who will have full access to all the records and can better appreciate the facts and the related grievances.
26. For the aforesaid reasons, we hold that no industrial dispute can be raised or referred to Industrial Tribunal or the Labour Court relating to discharge, dismissal, retrenchment or termination of any individual workman employed in the Corporation unless it is shown and found that he has exhausted all his statutory remedies provided under the regulations. It is only if, even after the finality of such internal remedies the workman still feels dissatisfied with the action of the Corporation, then only he can seek for his remedy under Section 10 of the Industrial Disputes Act."
The view of the Division Bench appears to this Court to be flawless rendition of the law and deserves to be followed. Following the thread of reasoning as above the reference itself is rendered incompetent and without jurisdiction. The Labour Court was thus not competent to decide the matter in the face of alternative remedy under rules framed under proviso to Article 309 of the Constitution of India, to wit the Punjab Civil Services (Punishment & Appeal) Rules, 1970 applicable to the Punjab Roadways. However, since the petitioner was pursuing a remedy in a wrong forum an allowance deserves to given to him by affording him the CM No.917 of 2013 in/and CWP No.26214 of 2012 -4- protection under Section 14 of the Limitation Act, 1963 since the period of limitation for filing departmental/statutory appeal may have run out long ago.
Learned counsel for the petitioner submits that in view of this legal position he now be relegated to his remedy of statutory appeal de hors the award of the Labour Court.
There is merit in prayer no.1. The award is, therefore, liable to set aside. The setting aside of the award without hearing the other party will not lead to any injustice to the Punjab Roadways which is a department of the Government bound by the rule of law. In fact adopting such course would subserve justice. The view of the appellate authority on the dismissal would emerge which it would have been bound to decide had an appeal been preferred. Therefore, it is not necessary to call upon the respondent - Punjab Roadways to respond to this petition. Neither they can be said to be aggrieved if a direction is issued by this Court that petitioner be permitted to avail his remedy of statutory appeal against the order of dismissal on pleas that may be available to him under the law and on facts which he may press in his defence. The award is therefore nullified. Resultantly, it is not necessary to examine the impugned award on merits and nothing said therein would be taken into consideration by the appellate authority in the Transport Department, Punjab nor would impede its judgment in re- examination of the matter.
A direction is, therefore, issued that the petitioner may file an appeal within 30 days of receipt of certified copy of this order before the Appellate Authority. In case, such an appeal is filed, the same would be CM No.917 of 2013 in/and CWP No.26214 of 2012 -5- decided on merits without citing bar of limitation. In case, such an appeal is filed, a further direction is issued that the same be decided on merits by the authority within three months of the date of filing of the appeal. Needless to add that the Appellate Authority would afford opportunity of hearing to the petitioner and pass an order in appeal in accordance with law. In case the order in appeal is adverse to the petitioner he would be at liberty to challenge the same in accordance with law.
So far as prayer no.2 is concerned for release of Provident Fund amounts together with interest, it can be said that non-payment of such money is an unlawful act of the Punjab Roadways. It is settled that Provident Fund contributions cannot be withheld even in the face of a dismissal order since it represents money earned. Therefore, a direction is issued to the respondents to consider release of the Provident Fund amount, if any, within 30 days of receipt of certified copy of this order if there is no other statutory bar in paying the amount, and the claim is well merited and the amounts remain unpaid, then a speaking order be passed and communicated to the petitioner.
Learned counsel for the petitioner submits that it would be fair and reasonable if some interest is ordered to be paid on the amount withheld. This may be considered by bifurcating the two independent prayers/issues.
There is merit in this submission. When money is due legally and is retained unlawfully as the respondents have done and used that money to the exclusion of the petitioner, award of interest would be justified. In these circumstances, it would be just and meet to order that in CM No.917 of 2013 in/and CWP No.26214 of 2012 -6- the event of PF amounts remaining unpaid the amount lying in the Provident Fund account may also be considered to be paid with interest @6% simple till realization.
The Punjab Roadways would be free to recover the amount of the interest component from erring officials who unlawfully withheld the Provident Fund amount of the petitioner, in case it is so, after the date of dismissal i.e.31.12.1997 from which date the interest would run.
Nothing said in the award would be taken as an expression on the merits of the case or be into consideration by the Appellate Authority while deciding the appeal except so far as limitation goes.
With the above directions, this writ petition stands disposed of.
(RAJIV NARAIN RAINA) 22.01.2013 JUDGE manju