Jharkhand High Court
(A) Sajda Kaneez Wife Of Late Badre Alam vs M/S Tisco Limited; Tube Division on 25 November, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 7795 of 2012
1. (a) Sajda Kaneez wife of late Badre Alam, aged about 56 years;
(b) Md. Amir Jameel son of late Badre Alam, aged about 28 years;
Both resident of House No.19, Cross Road - 10, Line Zakir Nagar
East, P.O. Azad Nagar, Jamshedpur, P.S. Mango, District - East
Singhbhum ... ... Petitioners
Versus
M/s Tisco Limited; Tube Division, at & P.O. Jamshedpur, P.S.
Jamshedpur, District East Singhbhum... ... Respondent
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Sarju Prasad, Advocate
: Mr. Altaf Hussain, Advocate
: Mr. Afaque Ahmed, Advocate
: Mr. Atmaram Choudhary, Advocate
: Ms. Neelam Kumari, Advocate
For the Respondent : Mr. G.M. Mishra, Advocate
: Mr. Manish Mishra, Advocate
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18/25.11.2024 This writ petition has been filed challenging the award dated
22.10.2011 passed by learned Presiding Officer, Labour Court, Jamshedpur in Reference Case No.11 of 1997 whereby the learned court has held that the reference was not maintainable and has also decided the case on merit that the termination of service of the concerned workman Sri B. Alam by the management was proper and the workman was not entitled for any relief.
2. The terms of reference before learned labour court, Jamshedpur was as follows:
"Whether the termination of service of Shri B. Alam, Billet cutter check no.2006 by M/s Tisco Tubes Division is proper? If not, what relief he is entitled to?"
Arguments of the Petitioners.
3. The learned counsel appearing on behalf of the petitioners, while assailing the impugned award, has submitted that the finding of the learned court that the reference itself was not maintainable, is perverse inasmuch as once the dispute is referred to the labour court for adjudication, the learned labour court has no option, but to answer the reference. The learned counsel submits that the detail discussion 1 with regard to the maintainability of reference is from paragraph 7 wherein the case of respective parties has been recorded. He has submitted that at the time of making reference, the existence of industrial dispute is required to be examined and the reference having been made, there cannot be any doubt that the industrial dispute was existing, but the learned court has held that the dispute itself was a stale one. He submits that the finding of the learned labour court that the reference itself was not maintainable is beyond the jurisdiction conferred upon the learned labour court, and is consequently perverse which calls for interference. The learned counsel has relied upon the judgment passed by Hon'ble Supreme Court reported in (2010) 14 SCC 176 (Kuldeep Singh Vs. General Manager, Instrument Design Development and Facilities Centre and another).
4. The learned counsel has further submitted that the domestic inquiry was held to be fair and proper, but the inquiry officer, was an outsider which is not permissible under the standing order governing the petitioner. The learned counsel has further submitted that even the second show cause notice was not given to the petitioners, and therefore, the inquiry could not have been held to be fair and proper.
5. The inquiry was held to be fair and proper vide order dated 10.08.2011. He has placed the entire order and during the course of argument, it transpired that neither the objection with regard to the appointment of the inquiry officer was taken at the stage of inquiry nor any plea was raised in connection with non-issuance of second show cause notice before the learned court.
6. During the course of argument, the learned counsel for the petitioners has submitted that though no such a plea with regard to issuance of second show cause was raised before the learned labour court, but the petitioner has raised this plea in the writ petition and he submits that such a plea being a pure question of law can be considered. He has submitted that issuance of second show cause is an important step in the matter of domestic inquiry and second show cause having not been issued, the entire inquiry proceeding is vitiated, 2 and therefore, the inquiry proceeding could not be held to be fair and proper.
7. So far as the merit of the case is concerned, the learned counsel has submitted that a specific plea was taken before the learned labour court in paragraph 23 of the written statement that one Sitakant Pandey, was also charge sheeted for same and similar charges as that of the concerned workman involved in this case and that he was held guilty by the inquiry officer but was taken back in service after awarding punishment of suspension of 15 days. Another person namely Sitaram Sahu was also proceeded against on the same and similar charges but no action was taken against him. Other workmen namely Roop Narayan Jha, Umapati Sethi, Abhimanyu Singh, Chakradhar Shah, Sri Pathak, Sri Ojha, Kameshwar Sharma were also proceeded against and dismissed from service but termination of all the persons have been held to be improper and unjustified and the relief of reinstatement was granted to them. The learned counsel submits that the case of the concerned workman was identically placed but he has been differently treated and has been discriminated.
8. The learned counsel has relied upon a judgment passed by this Court in LPA No.78 of 1990 (R) (Tata Iron and Steel Company Ltd. Vs. The Presiding Officer, Jamshedpur & Ors.), which involved three workmen and submitted that this Court ultimately decided the case in favour of the workmen involved in the said case.
9. During the course of argument and upon a specific query made by this Court, the learned counsel for the petitioners has fairly submitted that the charge sheets, the order of punishment etc. in connection with the persons, whose names have been mentioned in paragraph 23 of the written statement filed by the workman before the learned court, were not exhibited before the learned court. Arguments of the Respondent.
10. The learned counsel appearing on behalf of the respondent, while opposing the prayer, has submitted that there is no perversity in the impugned award calling for any interference. He has also submitted that the domestic inquiry was held to be fair and proper by a 3 reasoned order. The petitioner has not specifically challenged the order by which the domestic inquiry was held to be fair and proper. He has submitted that the objection with regard to the appointment of the inquiry officer was never raised before the domestic inquiry and rather the concerned workman had fully participated in the domestic inquiry and cross-examined the witnesses also. He has also submitted that before the learned labour court, no point with regard to issuance of second show cause was raised. The issuance of second show cause is itself a question of fact and such a plea cannot be permitted to be raised for the first time in the writ proceedings.
11. During the course of hearing, it transpired that though no specific challenge has been made by the concerned workman with respect to the order by which the domestic inquiry was held to be fair and proper but in the prayer portion of the writ petition itself, it has been stated that the inquiry was unfair and not proper.
12. The learned counsel has also relied upon the judgment passed by Hon'ble Supreme Court reported in (2006) 6 SCC 325 (Amrit Vanaspati Co. Ltd. Vs. Khem Chand and Anr.) paragraph 8 to submit that once the inquiry is held to be fair and proper, the matter has to be examined within the contours of Section 11A of Industrial Dispute Act and in the present case, the needful has been done by the learned court. He has also submitted that considering the nature of allegation which stood proved against the workman, the workman was not entitled for reinstatement and the plea of the workman that he was subjective to victimization, has also been rejected by the learned court.
13. He has also submitted that the workman participated in an illegal strike causing hindrance in discharge of work and stood at the platform of pilger mill and forcibly stopped the pilger mill operators from performing their duties, and therefore, it is submitted that the concerned workman does not deserve any sympathetic view. It has been submitted with regard to the comparison with other workmen that there was no material before the court to enable such a comparison. Moreover, the judgment passed in the case of certain workmen referred to in LPA No. 78 of 1990 (R) stand on a different 4 footing, as the charges in that case were not proved, and the domestic inquiry was held to be unfair.
Rejoinder arguments of the Petitioners.
14. In response, the learned counsel for the petitioners has submitted that even if the charge is said to be proved, the punishment is highly disproportionate to the charges levelled, and for this, he has relied upon a judgment passed by Hon'ble Supreme Court reported in (1998) 9 SCC 666 (Ram Autar Singh Vs. State Public Service Tribunal and Ors.) wherein the police officer remained absent for one day on account of hunger strike for opposing his transfer and ultimately the Hon'ble Supreme Court reinstated the concerned police officer with continuity of service and all consequential reliefs and 50% back-wages. The learned counsel submits that the quantum of punishment has not been properly considered by the learned labour court while considering the matter and accordingly the punishment- imposed calls for modification.
Findings of this Court.
15. The case of the concerned workman before the learned labour court was that he joined the service of Indian Tubes Company and later on the company was taken over by Tisco Ltd. He was served with a charge-sheet in connection with one incident which related to the period prior to taking over by Tisco Ltd. In the month of September, 1978, he resorted to agitation for payment of bonus at higher rate and the concerned workman was active member of Tube Company Workers Union and used to represent the cause of fellow workmen before the management and the workman had become eyesore of the management and management victimized him.
16. It was his further case that the authority who had issued the charge-sheet to him and issued the order of dismissal had no authority to do so; his explanation was not properly considered and the inquiry officer did not give him opportunity to defend himself and violated the principles of natural justice during inquiry proceeding. He had filed the miscellaneous case before the tribunal but ultimately the case was withdrawn. It was his further case that the management had committed 5 serious discrimination against the workman as because the other co- workers, who were also charge sheeted by the company for similar charges and the inquiry officer held them guilty but they were taken back in service with back wages after the award passed by the court but the concerned workman was not taken back in service. The workman claimed that his case was on better footing, and therefore, the prayer was made to set aside his order of termination and to pass an order for reinstatement in service with full back wages.
17. On the other hand, the management pleaded before the learned labour court that the reference itself was not maintainable, as no demand was submitted directly to the management. The so-called demand was submitted to the District Labour Commissioner, Jamshedpur, and therefore, there was no industrial dispute in the eyes of law. At the relevant point of time, the workman was working under Indian Tube Company Limited, and there was a reference pending in the Industrial Tribunal. The management had filed a petition under Section 33 (2) (b) of Industrial Disputes Act seeking approval for the action taken against the concerned workman in Miscellaneous Case No.3 of 1979, and subsequently the said petition was withdrawn by the management. Thereafter, the workman filed a petition under Section 33A of Industrial Dispute Act in Miscellaneous Case No.1 of 1980, which was disposed of by the Tribunal on 29.03.1982 passing no dispute award with regard to the dispute raised by the workman, but this aspect of the matter was suppressed by the workman while submitting the demand to the District Labour Commissioner, Jamshedpur, and he managed to get the reference. Consequently, the reference was not maintainable. A plea was also raised that the dispute was very stale as the reference was made after 18 years of the order of dismissal. It was asserted that the workman was employed in Indian Tube Company Limited on 30.05.1960 which was taken over by Tisco on 01.10.1985 and since then the employees of Indian Tube Company were deemed to be employees of Tisco and Certified Works Standing Order of the management was applicable to all the employees. It was further asserted that the workman was charge sheeted and a domestic 6 inquiry was conducted and after receiving the inquiry report, the workman was discharged from service with effect from 22.01.1979. The workman had participated in the domestic inquiry and the inquiry officer concluded the inquiry after following the principle of natural justice and upon giving sufficient opportunity to the workman to defend himself. It was asserted that the dismissal of the workman was justified and he was not entitled to any relief.
On the point of legality and validity of domestic enquiry.
18. The matter regarding legality and validity of the domestic inquiry was taken up as a preliminary issue and it was decided in favour of the Management vide Order dated 10.08.2011. The perusal of the order reveals that the workman assailed the enquiry proceeding on two grounds. Firstly, the inquiry officer was not appointed from amongst the employees of the company and the inquiry officer was an outsider having no jurisdiction to conduct the inquiry; Secondly, in the same incident, other workers were also charge sheeted and their inquiry proceeding was also conducted by the same inquiry officer and the court had found that the domestic enquiry was unfair and not proper and their award was confirmed by the Hon'ble High Court and also by the Hon'ble Apex Court.
19. The aforesaid plea was opposed by the Management.
20. The learned labour court recorded that the workmen duly participated in the inquiry proceeding and remained present on each and every date and had not made any complaint with regard to authority of the inquiry officer or for not giving any opportunity to defend himself. The learned Labour Court also recorded that the Indian Tube Company, Jamshedpur had merged with Tisco Ltd. Jamshedpur on 01.10.1985 and there was no legal impediment to appoint any competent person who is outsider of the company for conducting inquiry of the workman and it was common practice to engage even advocates to become an inquiry officer. The court also recorded that the facts and circumstances of each inquiry proceeding is distinct and the allegation against each workman might be different and distinct and in the present case, the workman had not 7 substantiated the fact that the allegation and the inquiry procedure and statement of the witnesses in the inquiry were the same as compared with the other proceedings. Hence, it was concluded that the facts and circumstances of the concerned workman namely Badre Alam could not be shown to be tallying with that of the concerned other workmen. The learned labour court vide order dated 10.08.2011 has ultimately held that the domestic enquiry conducted by the management against the concerned workman was fair and proper and in accordance with the principle of natural justice and the report was based on material available on the record and the management is directed to argue the case in terms of Section 11 A of the Industrial Disputes Act, 1947, on the merit of the case and the matter was directed to be posted on 29.08.2011.
21. Upon perusal of the order dated 10.08.2011, this Court finds that the point regarding competence of the inquiry officer and also the point regarding natural justice and the point regarding comparison with other workmen have been elaborately dealt with and decided. Neither the order dated 10.08.2011 nor any material has been shown by the learned counsel for the petitioner to reveal that at any point of time, the workman took a plea that the second show cause was not issued to him. However, such plea has been taken for the first time in writ proceedings and has been argued by stating that such a point is a pure question of law. This Court is of the considered view that issuance of second show cause is essentially a question of fact and the consequence of non-issuance of second show-cause can be considered only if the foundational fact regarding non-issuance of second show cause is pleaded and proved.
22. The concerned workman having not taken a plea regarding non- issuance of second show cause at any stage before the learned Labour Court, cannot be permitted to raise such a plea for the first time in writ jurisdiction wherein essentially the scope of adjudication is to find out if there is any perversity or glaring illegality in the award passed by the learned Labour Court keeping in light the respective case of the parties before the labour court. The writ court does not sit in appeal 8 against the award passed by the learned Labour Court or Industrial Tribunal. In absence of any point raised before the learned labour court with regard to non-issuance of second show cause to the concerned workman, this Court is of the considered view that such a plea cannot be permitted to be taken for the first time in writ proceedings. With respect to the competence of the inquiry officer alleged to be an outsider, this Court finds that the learned labour court has rightly rejected such a plea on the ground that no such objection was ever taken before the inquiry officer and there is no legal bar in appointing an outsider as inquiry officer. With regard to the case of other workmen as raised by the concerned workman before the learned Labour Court, the matter has been dealt in the order dated 10.08.2011 itself and it has been observed that the necessary documents with regard to other employees were not available for comparison and each inquiry is a distinct inquiry.
23. In view of the aforesaid findings and having gone through the order dated 10.08.2011 holding the domestic inquiry fair and proper, this Court finds no illegality or perversity with the aforesaid order calling for any interference under Article 226 of the Constitution of India.
On the merit of the case.
24. On the merit of the case, the labour court had framed two issues, one, is the present reference maintainable? second, whether the termination of service of Sri. B. Alam by M/s Tisco Tubes Division is proper? If not, what relief he is entitled to?
25. The learned labour court while considering the issue no.1 on the point of maintainability has considered the three points, firstly, the workman had raised the demand before District Labour Commissioner, Jamshedpur and not before management, secondly, the workman was discharged from service on 22.01.1979 and the demand was raised on 22.06.1996, there was a delay of about 17 and a half years and the reference was a stale one. Thirdly, the management had filed a Miscellaneous Case No.3 of 1979 before the Industrial Tribunal 9 in connection with the order of dismissal of the workman, which was disposed of by an award but the workman did not challenge the same.
26. While deciding the issue no.1 the learned labour court held that the reference itself was not proper and only a demand having been raised by the workman before the government will not make it into an industrial dispute. The learned labour court also held that the demand of the workmen was a stale one. However, with respect to the miscellaneous case, it was held that the workman had filed a Miscellaneous Case No.1 of 1981, challenging his order of dismissal, which led to an award on 29.03.1982, as no dispute award, as because workman was not serious to proceed with the case. The learned court held that the case was not decided on merit and held that the workman had suppressed the fact, but that by itself was not an impediment in raising a demand.
27. This Court finds that once an industrial dispute is referred for adjudication, there was no scope for the learned court to question the existence of an industrial dispute and thereby question the reference itself on the point that the workman had not raised the demand directly before the management and also on the point that the claim itself was a stale one. Once the reference is made, the court is duty-bound to answer the reference in accordance with law. It has been held by the Hon'ble Supreme Court in the judgement passed in the case of Kuldeep Singh (supra) that the real test for making a reference is whether at the time of reference dispute exists or not and when it is made it is presumed that the government was satisfied with the ingredients of the provision and hence the labour court cannot go beyond the reference. It has also been held that the satisfaction of the government in making the reference is based on the subjective satisfaction of the government. This Court is of the considered view that the finding of the learned labour court with respect to Issue No. 1 holding that the reference itself was not maintainable on the aforesaid two counts, is perverse and calls for interference and it is held that the reference was maintainable. However, the fact remains that the learned labour court has decided the case on merit also and decided 10 the legality and validity of the domestic inquiry in favour of the management and exercised the power under Section 11A of Industrial Disputes Act, 1947.
28. The scope of inquiry with regard to Section 11A has been decided by the Hon'ble Supreme Court in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. Vs. Management and others reported in (1973)1 SCC 813 and has also been considered in the case of Amrit Vanaspati Co. Ltd. v. Khem Chand, (2006) 6 SCC 325 at paragraph 8 in the following words: -
"8. We are unable to countenance the submission made by the learned counsel for the respondent. This Court in a judgment in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. exhaustively referred to various decisions of this Court and gave a clear picture of the principles governing the jurisdiction of the Tribunals when adjudicating disputes relating to dismissal or discharge. Para 32 of the said judgment is reproduced here:
"32. From those decisions, the following principles broadly emerge:
(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his 11 action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Panitole Tea Estate v. Workmen within the judicial decision of a Labour Court or Tribunal." (emphasis supplied)
29. The learned labour court while scrutinizing the materials placed at the stage of inquiry and the materials placed before the court in the light of the scope under Section 11A of the Industrial Disputes Act, 1947 found that the charges were fully proved against the workman and rejected the plea raised by the workman before the court by 12 observing that his plea was contradictory and his defence was not acceptable. The findings of the learned labour court in this regard are as under: -
"8. Issue No. II:- Apart of that considering the material available on the record on merit I find that the charges was levelled against the workman that on 28.9.1978 at about 3.25 P.M. while he was on duty, he left his place of work, entered the Seamless Mill and stood on the plat form of the Pilger Mill forcibly stopping the Pilger Mill Operators from performing his duty, and on the conclusion of the enquiry E.O. had found the charges fully proved against the workman. I also find that the this court has found the domestic enquiry conducted by E.O. against the workman is fair, proper and in accordance with the principle of natural justice; and thereafter the case was fixed for hearing u/s 11A of the I.D Act. As per the written statement as well as statement of the workman during domestic enquiry his case is that the workman of the company had stopped working of the company in protest for the payment of bonus at the higher rate, and the workman was in 'B' shift duty and at the relevant time he was on his work place and was busy in his work. And further stated that the concerned workman was an active member of the Union and used to represent the cause of fellow workmen before the management due to which he was victimized by the management. But this facts has been stated otherwise by the workman and his witness during the evidence in the court. In this way I find that the workman has pleaded that he was an active member of the union and at the relevant time there was an agitation in the company by the workman for the bonus at the enhance rate, and he was all along busy in his work at his work place. But in evidence workman has stated that at the relevant time there was strike in the company, and no work was going on in the company, and his department was also closed, and he was siting at his work place. And such evidence of the workman appears to me contradictory from his earlier statement and pleading; and such facts is not probable as because the workman being an active member of the union was siting idle working place without taking part in the agitation of the workmen; and such defence version of the workman is not acceptable."
30. After having held as aforesaid and having found that the charges against the workmen were proved, the learned court considered the plea of victimisation and also the plea of discrimination vis-à-vis other workmen who according to the concerned workmen were similarly placed and were said to have been taken back in service and rejected such plea by distinguishing the judgement passed in the case of CWJC No. 2049 of 1988 (R). Apart from this, the chargesheet etc. with regard to other workmen were not produced and considering 13 the nature of the charge proved, the plea of victimisation was also rejected. The findings of the learned labour court on the aforesaid point of discrimination and victimisation are quoted as under: -
"The workman has also taken plea that he was victimized by the management being an active member of the union and pointed out that the other workmen were also charge-sheeted for the same allegation, but few of them were taken back in service, and few were reinstated by Award of this court and the said award was upheld by the Hon'ble High Court. And the workman has also filed a Xerox copy of the Hon'ble court passed in CWJC No. 2049 of 1988 (R). From the decision it appears that Hon'ble Court has held that other co-workers were found absent from the place of work, and it can not be turned to be absent from duty, and it was a causal absent for a very short time, and even if they were seen along with other co-worker, it cannot be reasonably concluded that they have left the place of work only with a view to encourage or incite the workers for illegal strike. It is also facts that the co-workers were also chargesheeted separately and their domestic enquiry was also held separately from the concerned workman and there is specific allegation against the concerned workman that at the relevant time he left his place of work, entered the Seamless Mill and forcibly stopped the Pilger Mill Operator from performing their duty, which was proved. In this way it is clear that the case of the concerned workman is not on the same footing of the co-workers rather his case is more serious then the co-workers. Thus, I am of the opinion that the concerned workman was not victimized by the management and he was rightly dismissed from the service of the company by the management. Accordingly, this issue is also being decided against the workman and in favour of the management."
31. Before the learned labour court, the concerned workman had relied upon the judgment passed by this Court in CWJC No. 2049 of 1988 (R) with regard to other co-workers but the same was distinguished by the learned labour court. The learned court also recorded in the impugned award that the co-workers were also charge- sheeted separately and their domestic inquiries were also held separately from the concerned workman and has also considered that there was a specific allegation against the workers that at that point of time, he left his place of work and entered into Seamless Mill and forcibly stopped Pilger Mill Operator from performing their duty and such charge was proved. The learned labour court also found that it was clear that case of the concerned workman was not on same footing as that of the co-workers rather it was more serious than the 14 co-workers and was of the view that the concerned workman was not victimized by the management but was rightly dismissed from service.
32. Before this Court, the petitioner has not referred to the Judgment passed in CWJC No.2049 of 1988 (R) which was distinguished by the learned labour court. Rather reliance has been placed on judgment passed in LPA No.78 of 1990 (R) arising out of judgment dated 23.04.1990 passed in CWJC No. 92 of 1984(R), though, the said judgment was not placed before the learned labour court.
33. The charges against the workman involved in L.P.A. No.78 of 1990(R) has been quoted in the judgment itself which was dated 06th February, 1992 and the connected case was reference case No.19 of 1979. The said judgment reveals that the labour court found that the domestic inquiry was not conducted in accordance with the principle of natural justice and therefore, it was invalid and thereafter, the management availed opportunity to lead the evidence before the labour court with a view to establish the charges against the workman. The labour court found that the charges were partly proved and more serious part of the charge was not proved and the action of the management dismissing the workman was held to be not justified vide the award pronounced on 25.10.1983. A direction of reinstatement in service with 50% back wages was passed and it was observed that denial of 50% back wages was sufficient punishment. This Court in LPA No. 78 of 1990(R) ultimately upheld the judgment of the learned single judge who refused to interfere with the award of the labour court.
34. This Court is of the considered view that the judgment passed in LPA No. 78 of 1990(R) has no bearing in this case. In the present case, the domestic inquiry was held to be proper. The entire charges levelled against the concerned workman were held to have been proved. The learned labour court considered the materials within the scope of Section 11 A of Industrial Disputes Act, 1947 held that the charge was duly proved and also rejected the allegation of victimization. Admittedly, no other charge sheet of any workman in 15 connection with the alleged incident were produced for comparison and consideration and whatever was produced was duly considered and distinguished.
35. Upon going through the entire records of this case, this Court finds that neither the charge sheet nor the final order in connection with other workmen were produced by the concerned workman before the learned labour court to enable the court to examine the matter in the light of parity as claimed by the concerned workman. In order to compare two similarly situated persons, who have faced different domestic inquiry, and in order to draw any parity with regard to their treatment by the management, the charge sheet, nature of evidence produced, the nature of defence taken, the findings of the inquiry officer, and disciplinary authority etc. are all required to be taken into consideration and compared. Otherwise, every inquiry is a distinct inquiry even if made with respect to different workmen by issuing different charge sheets. In absence of foundational fact with regard to other workmen, the argument of the petitioner that other similarly situated persons were taken back in service, has no bearing in the matter.
36. There can be no dispute that even if different workmen are charge-sheeted arising out of the same incident and they are subject to different inquiry, the result of one proceeding cannot be compared with the result of the other. In absence of comparison of the chargesheets, evidences produced and the inquiry conducted no finding with respect to discrimination/victimisation can be drawn. The learned court held that the workman was not victimized by the management, rather he was rightly dismissed from the service of the company. The plea of the workman with regard to comparison with other co-workers was also rightly rejected.
37. This Court is of the considered view that the concerned workman failed to prove his case of parity vis-à-vis other workmen and also failed to prove that the order of dismissal was disproportionate, much less shockingly disproportionate to the charges proved against the concerned workman. The concerned workman 16 failed to make out a case of victimisation or even discrimination. Consequently, the finding of the learned court with regard to Issue No.2 does not call for any interference.
38. In view of the aforesaid of facts and circumstances, though this court has held that the finding of the learned labour court that the reference was not maintainable is perverse, still the petitioners will not be entitled to any relief. The finding of the learned labour court on merits upholding the domestic enquiry as fair and proper and upholding the order of dismissal of the concerned workman by the management by scrutinising the records in terms of Section 11A of the Act of 1947 and rejecting the plea of discrimination and victimisation of the concerned workman does not suffer from any perversity or illegality calling for any interference under Article 226 of Constitution of India and accordingly, this writ petition is dismissed.
39. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.) Saurav/-
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