Punjab-Haryana High Court
M/S K.G.Khosla Compressors Ltd vs Awdesh Goswami And Others on 27 November, 2013
Author: Rajive Bhalla
Bench: Rajive Bhalla
LPA No.245 of 2010 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No.245 of 2010
Pronounced on: 27th November, 2013
M/s K.G.Khosla Compressors Ltd. ..... Appellant
VERSUS
Awdesh Goswami and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON
Present: Mr.Sanjay Bansal, Senior Advocate, with
Mr.Vivek Sharma, Advocate, for the appellant.
Ms.Abha Rathore, Advocate, for the respondents.
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RAJIVE BHALLA, J.
The appellant challenges order dated 14.10.2009, whereby a writ petition filed by the workmen was allowed, award dated 21.01.2000, passed by the Industrial Tribunal-cum-Labour Court, Faridabad (hereinafter referred to as the 'Labour Court'), awarding compensation in lieu of reinstatement, was set aside and the workmen were ordered to be reinstated, with backwages.
Counsel for the appellant submits that award by the Labour Court has been wrongly set aside by holding that as the strike was not illegal, termination of the workmen, from services, was illegal. It is further submitted that while recording the above finding, Sections 22, 23 and 24 of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') have been wrongly interpreted. It LPA No.245 of 2010 [2] is further submitted that the management could not conduct an enquiry in view of the charged atmosphere in the factory. The management, therefore, produced its entire evidence before the Labour Court. The admissions made by the workmen, the statements made by management-witnesses MW-6 Sanwal Ram, Supervisor, Security Staff and MW-7 Ram Singh, Security Guard, who have categorically deposed that the workmen entered the factory premises forcibly and instigated other workers to join the strike, are sufficient to prove misconduct. The learned Single Judge has overlooked the evidence on record and wrongly held that evidence adduced by the management is insufficient to prove charges levelled against the workmen. The Labour Court has rightly held that the mere fact that some workmen have been reinstated, does not entitle the workmen to reinstatement in view of loss of confidence and, therefore, proceeded to award compensation. The learned Single Judge has reversed these findings without assigning any clear or cogent reasons. The Hon'ble Supreme Court has while dealing with the cases of reinstatement, consistently held that where the employer has lost confidence in an employee, it would be appropriate, that compensation is granted instead of reinstatement. Counsel for the appellant places reliance upon the following judgments: -
1. Awadesh Chandra Agarwal V/s LIC (2008) 14 SCC 802;
2. Aurofood (P) Ltd. V/s S. Rajulu (2008) 14 SCC 608;LPA No.245 of 2010 [3]
3. Afaq Hussain V/s UPSRTC (2008) 5 SCC 715;
4. Engg. Laghu Udyog Employees' Union V/s Judge, Labour Court and Industrial Tribunal (2003) 12 SCC 1;
5. Ajit Kumar Nag V/s G.M. (PJ), Indian Oil Corpn. Ltd., (2005) 7 SCC 764.
Counsel for the workmen-respondents submits that admittedly, no inquiry was conducted before termination and no permission was sought from the Labour Court to lead evidence with respect to the alleged misconduct by workmen. The learned Single Judge was, therefore, left with no option but to appraise the evidence on record so as to ascertain whether evidence adduced by the management discloses misconduct of such a degree as would require termination. The learned Single Judge has after a threadbare consideration of the pleadings and evidence, recorded a finding that as the strike was not illegal, the absence of any cogent evidence relating to the charges levelled could not invite termination of services of the workmen. It is further argued that by awarding compensation in lieu of reinstatement, the Labour Court, has, in essence, held that termination was illegal, thereby nullifying its own finding of misconduct by the workmen. The failure of the Labour Court to grant reinstatement on the ground of loss of confidence, has been rightly reversed by the learned Single Judge as no such plea was LPA No.245 of 2010 [4] ever raised or proved by the management. It is argued that as misconduct has not been proved, mere statements by the witnesses produced by the management are insufficient to grant compensation in lieu of reinstatement.
We have heard counsel for the parties and perused the impugned order as well as the award passed by the Labour Court.
The dispute, in the present case, commenced more than two decades ago. M/s A.G.Khosla Union, the recognised union, submitted a demand notice to the management, raising various demands for increase of pay and better service conditions etc. The management applied for retrenchment of 115 workers which was declined by the Government of Haryana on 27.08.1991. The management again applied for retrenchment of 326 workers and for closure of the unit which was also declined. The management contends that from 06.08.1991 to 04.09.1991, there was an illegal strike in the factory. The workmen manhandled a Security Guard leading to further labour unrest. The workmen on the other hand, allege that on 04.09.1991, they were not allowed entry except if they signed an undertaking, as desired by the management. The workmen refused to sign the undertaking leading to an illegal lock-out on 05.09.1991. The management alleges that the lock-out was legal. The management further alleges that charge-sheet dated 13.09.1991 was served upon the workmen and vide order dated 03.12.1991, their LPA No.245 of 2010 [5] services were terminated. The workmen contend that their services were terminated without holding a domestic inquiry and the lock-out was eventually lifted on 07.06.1992 after settlement with a management-sponsored union. The workmen including 31 active workers of the union were refused any duty and were not paid wages for this period. A collective demand notice dated 08.08.1992, against illegal and arbitrary dismissal of the workmen was served upon the management through the General Secretary of the union. The reference was rejected by the State of Haryana on 01.01.1993. A writ petition was filed whereafter an industrial dispute was referred for adjudication on the following issue: -
"Whether there is justification in the termination of the services of the workmen/claimants and if not, to what relief they are entitled?"
The Industrial Tribunal-cum-Labour Court, Faridabad-I, consolidated thirteen references. The workmen led oral evidence in the shape of WW-1 Awdesh Goswami, workman, WW-2 Abhay Nath, workman, WW-3 Manjeet Singh, Assistant O/o Labour Commissioner, Haryana, Chandigarh, WW-4 Satpal, workman The management led oral evidence of MW-1 D.R.Gera, Deputy Manager, MW-2 Bhupinder Mall, Deputy Manager, MW-3 R.K.Kapoor, Assistant General Manager, MW-4 M.L.Nandwani, Senior Deputy General Manager, MW-5 D.P.Pushkarma, Manager of LPA No.245 of 2010 [6] Plant-I, MW-6 Sanwal Ram, Supervisor Security, and MW-7 Ram Singh, Security Guard. In rebuttal, the workmen produced WW-5 Jal Ram, workman and WW-6 Davender Lal Karan, workman.
The Labour Court decided a preliminary issue holding that the references are legal and valid and thereafter proceeded to decide the main issues. The management conscious of the fact that it has not held a domestic inquiry, produced the charge-sheet and led evidence in support of charges levelled before the Labour Court. It would be appropriate to reproduce the charge-sheet and refer to the findings in detail so as to place our conclusions to be recorded in their correct perspective.
Charges No.1 and 2 are identical with respect to all the workmen and read as follows: -
"1. That you incited and instigated the willing workers to illegal and unjustified strike with effect from 26.08.1991 to 4th September, 1991 and incited them also to various acts of indiscipline apart from yourself being on such strike and committing various acts of indiscipline during the said strike and thereby causing serious financial damages to the Company.
2. That on 4th September, 1991, you pushed aside security staff posted at Gate No.1 and forcibly entered the factory without giving the undertaking as required. You incited and instigated the other workers also to do so for their entering the premises.LPA No.245 of 2010 [7]
You again incited and instigated them to strike and to commit various acts of indiscipline."
Charge No.3 relates to Avdesh Goswami, Ravinder Kumar and Jaikrit Lal, and read as follows:-
"3. You in spite of having been locked out since 5.9.1991, presented yourself at Gate No.1 of the factory and obstructed the entry of exempted employees S/Sh.G.Ghosh and M.L.Nandwani today at 8.30 A.M. and did not allow them to go inside."
After considering the pleadings and the entire evidence adduced, the Labour Court has held that workers are guilty of misconduct but as the management has reinstated other workers, they cannot be dismissed from service. After holding as such, the Labour Court proceeded to hold that the workmen are not entitled to reinstatement on account of loss of confidence but directed payment of compensation. The learned Single Judge, has held that the proof of charges levelled i.e. incitement, instigation, indiscipline, pushing a security guard and forcible entry into the factory would depend upon the nature of the strike namely whether the strike was illegal and unjustified. After considering Sections 22, 23 and 24 of the Act, the learned Single Judge has held that the strike was not illegal and, thereafter held that as the foundation of charges is incorrect the other findings cannot be sustained. The learned Single Judge has also held that the charges levelled have not been proved.
LPA No.245 of 2010 [8]
The basis of almost every industrial dispute is a clash, between managements impelled by profit and workmen by their financial well being. A lack of understanding for each others genuine problems, an intransigent attitude by managements and an unyielding stand by workmen, often leads to both sides reaping the consequence of their inflexible stands. The management looses production and profit while the workmen their wages and livelihood. The case, in hand, is an example in point. In our attempt to resolve this impasse, parties were asked to make an attempt to sort out their differences. The claims put-forth by workmen were rejected by the management, by offering a pitiable amount making a mockery of our efforts to resolve this dispute.
It appears that though there was labour trouble in the factory, the management was to blame as instead of negotiating with the legitimate union, it incited workers by negotiating with a union which was neither recognised nor the legally constituted union of the workers. While we do not condone any act of violence or the conduct of the workers in its entirety, cannot but adversely comment upon the conduct of the management.
Admittedly, the management did not hold a domestic inquiry before terminating services of the workmen but led evidence before the Labour Court, to prove charges levelled against the workmen. After perusing the evidence the Labour Court held that by LPA No.245 of 2010 [9] taking part in the illegal strike, instigating other workers to do so and making forcible entry in the factory without signing the undertaking, charges against the workmen stand proved except D.L.Karan, Machinist, against whom charge No.1 stands proved. However, after considering that out of 23 workers dismissed four similarly situated workers were taken back on duty and five others were taken back later, the Labour Court, instead of ordering reinstatement held that the workmen are not entitled to reinstatement as the management has lost confidence in these workmen. The Labour Court, has in essence, held that reinstatement of other employees entitles the workmen to reinstatement but on account of loss of confidence they are only entitled to compensation. The management has not challenged these findings.
The award has been reversed by holding that the strike was not illegal and findings recorded against the workmen are based upon general deposition by management witnesses. A relevant extract from the order passed by the learned Single Judge, reads as follows: -
"10. Even without characterizing the management as being guilty of unfair trade practice, even the charges attributed to them had not been proved. We have already seen that the first charge was the alleged incitement carried out by the workmen to join the illegal strike. There was no proof of strike. There was no illegality, even if there was one. The acts of sabotage had not been spoken by any of the witnesses. The Labour Court was unjustified in making an observation that the witnesses LPA No.245 of 2010 [ 10 ] had spoken so. Even as regards the second charge that there had been an assault on security staff, even the security staff, who had given evidence did not expressly say so; on the other hand, his evidence was that the workmen forced their entry. If the charge had been that the workmen had forced the entry without the permission of the security staff and evidence had been given that he had been pushed down, it could be forcible entry. On the other hand, if the charge was a definite act of assault on the security staff, a mere expression of a forcibly entry in evidence by the security staff cannot prove the misconduct of assault. The learned counsel for the workmen had taken me through the evidence of each one of the witnesses of the management. MW-1 D.R.Gera, Deputy Manager, had given evidence only to the effect that the orders of dismissal had been sent to the workmen, but they had been received back unserved. Nothing was elicited from him as regards the misconduct attributed. MW-2 Bhupinder Mallah, Deputy Manager of the respondent, had stated that the workers had stopped working from 26.08.1991 and the Company was forced to lockout on 05.09.1991 and that all the claimants were involved in the strike. His evidence was that he had advised to all the workmen to resume work. He again did not utter a word about any misconduct found in the charge-sheet. MW-3 R.K.Kapoor stated that the workmen had gone to strike and the management was forced to declare a lockout. He also gave evidence to the effect that three of the workmen had been advised by him to resume the work. MW-4 referred to one Ravinder, as having participated the strike and that he had advised him not to resort the strike. MW-5 referred to a person by name Lalu as having been working under him, who also had joined the alleged strike and that he had advised him to resume work. MW-6 Sanwal Ram was the Supervisor, Security Staff, but he had not spoken about the alleged assault. MW-7 Ram Singh, who was the Security Guard himself stated no more than LPA No.245 of 2010 [ 11 ] the workmen as having forcibly entered the factory. He did not utter aby word on the alleged assault on him as found in the charge-sheet.
11. I have examined the evidence rendered before the Labour Court minutely only to satisfy myself about the utter perversity of the finding of the Labour Court that the charges had been proved. The charge-sheet was specific but there existed no proof. The charge-sheet proceeded even on a wrong basis that there was an illegal strike. The evidence only supported the case of some among the workmen as having resorted to strike. If the workmen had joined the strike, so long as it was not shown to be illegal, any act by the management to prevent the same without entering into meaningful negotiation for putting an end to the strike or entering into a settlement but dismissing some workmen only will have to be characterized as only as unfair labour practice. The action of the management to terminate the services of the workmen was, therefore, clearly unjustified and illegal."
A perusal of the above extract reveals that the strike was not illegal and as charges have not been proved, mere entry of workmen in the premises without signing the undertaking required by the management cannot be said to be such a misconduct as would invite dismissal from service. We find no reason to differ with these findings or to reappraise the pleadings or evidence so as to record a finding to the contrary. Admittedly and as held by the Labour Court, other workers have been reinstated. The workmen therefore, could not be treated differently.
The argument relating to loss of confidence in the LPA No.245 of 2010 [ 12 ] workmen, cannot be accepted as charges against the workman have not been proved. Loss of confidence may be inferred if misconduct is proved but the mere fact that the workmen may be leaders of the union etc., is not sufficient to raise an inference of loss of confidence. A workman is entitled to raise demands relating to his welfare and working conditions and a management is expected to respond. The judgments cited by counsel for the appellant do not advance the appellants case in any manner.
In view of what has been recorded hereinabove, the appeal is dismissed.
[ RAJIVE BHALLA ]
JUDGE
27th November, 2013 [ DR. BHARAT BHUSHAN PARSOON ]
shamsher JUDGE
Singh Shemsher
2014.01.10 11:45
I attest to the accuracy and
integrity of this document
Chandigarh