Allahabad High Court
Regional Manager U.P.S.R.T.C. ... vs State Of U.P. & Others on 2 January, 2012
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 27 Case :- WRIT - C No. - 2342 of 2002 Petitioner :- Regional Manager U.P.S.R.T.C. Moradabad Respondent :- State Of U.P. & Others Petitioner Counsel :- M.M. Sahai Respondent Counsel :- C.S.C. Hon'ble Pradeep Kumar Singh Baghel,J.
By way of the present writ petition, the Regional Manager U.P.S.R.T.C. Moradabad has challenged the award of the Labour Court dated 13.11.2001, whereby the Labour Court has set aside the termination of the respondent no. 3 and reinstated him with full backwages.
The short facts leading to the present writ petition are that the respondent no. 3 was a bus conductor under the U.P.S.R.T.C. at Meerut. On 27.11.1985 his duty was on bus no. U.H.C. 459. On the said date in the morning 60 passengers had boarded the bus. However, the respondent no. 3 was the conductor and in connivance with the driver of the bus he took the wheel and drove the bus unauthorizedly leaving behind five passengers. The bus met an accident and he was arrested by the police. The police found that he was intoxicated and was sent for medical examination.
In respect of the said accident a crime case no. 224 of 1988 under sections 116 and 112 of the Motor Vehicle Act registered against the respondent no. 3. On the basis of the same incident, respondent no. 3 was subjected to the disciplinary proceedings. A charge sheet was issued against him and an Inquiring Officer was appointed to conduct the departmental proceedings. The respondent no. 3 participated in the departmental proceeding and he also submitted reply to his chargesheet. In the inquiry he was found guilty of the charges. The Inquiring Officer submitted his report to the disciplinary authority. The Disciplinary Authority vide his order dated 23.8.1989 imposed the punishment of dismissal of the respondent no. 3 from service.
The respondent no. 3 aggrieved by the order of the Disciplinary Authority dated 23.8.1989 filed a departmental appeal before the Divisional General Manager. His appeal also came to be rejected. Respondent no. 3 aggrieved by the aforesaid order raised industrial dispute and the matter was referred under Section 4-K of the U.P. Industrial Dispute Act on 15.12.1995. The reference was registered as case no. 38 of 1996 before the respondent no. 2, Labour Court, Rampur. Before the Labour Court the parties had filed their written statements. The Labour Court by its award dated 13.11.2001 set aside the dismissal order dated 23.8.1989 and directed the Corporation to reinstate the respondent no. 3 with full backwages. The Labour Court has recorded a finding that Corporation/ Employer failed to prove the charges against the respondent no. 3 and as such it found that respondent no. 3 was entitled for reinstatement with full backwages.
The petitioner/Corporation aggrieved by the order of the Tribunal dated 13.11.2001 has filed the present writ petition.
I have heard Sri M.M. Sahai, learned counsel appearing for the petitioner and Sri Aditya Vardhan holding brief of Sri Rahul Sripat appearing for the respondent no. 3.
Sri Sahai submitted that the award of the Labour Court is vitiated inter -alia on the ground that Labour Court has swayed away by the fact that respondent no. 3 was acquitted in criminal proceeding by the Magistrate vide order dated 21.8.1989. He further submitted that the finding of the Labour Court that charges were not proved is perverse. It is further contended that Labour Court has no jurisdiction to reappraise the evidence and come to a different conclusion. In any view of the matter, the respondent no. 3 was not entitled for the full backwages. Sri Sahai placed reliance on the judgment in the cases of U.P. State Brassware Corpn. Ltd. And another Vs. Uday Narain Pandey ( 2006) 1 SCC 479 and P.V.K. Distillery Limited Vs. Mahendra Ram, (2009) 5 SCC 705.
Sri Aditya Vardhan, learned counsel appearing for the respondent no. 3 submitted that there is no infirmity in the order passed by the Labour Court as finding of fact has been recorded by it after analyzing the evidence on record that the charges against respondent no. 3 were not proved. He urged that this Court under Article 226 of the Constitution may not interfere with the finding of fact recorded by the Labour Court as those findings are based on the evidence on record and they do not suffer from any perversity or illegality. Sri Aditya Vardhan has taken the Court to the record of the case to satisfy that the findings of Labour Court do not warrant any interference under Article 226 of the Constitution.
I have considered the rival submissions advanced by the learned counsel for the parties.
The Labour Court has recorded a finding that the employer has not adduced any evidence to establish the charge that the respondent no. 3 was intoxicated. The respondent no. 3 was medically examined. The medical report clearly shows that no alcohol was found in his blood. The oral statement of doctor recorded by the police that some smell was coming from the mouth of respondent no. 3 is not sufficient evidence to prove the charge. Moreover, neither the doctor nor any police officer was examined in the departmental proceedings. Those witnesses were important witnesses to prove the said charge. However, the Corporation did not produce any witness to prove the said charge.
It is settled law that in the disciplinary proceeding the employer has to prove the charge irrespective of the fact that the employee has called his witnesses or not. Even in the ex-parte inquiry when employee has not participated, the employer must prove the charges by adducing sufficient evidence. This Court in the case of Subhash Chandra Sharma Vs. Managing Director and another, 2000 (1) U.P.L.B.E.C. 541 has held as;
7. " The Court also held that in the inquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine these witness and to lead evidence in his defence. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160, (vide para 66) the Supreme Court held that in such inquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd v. Their Workmen, ( 1963) II LLJ, 396, and in Tata Oil Mills Co. Ltd. vs. Their Workmen, ( 1963) II LLJ, 78 (SC)."
8. Even if the employee refuses to participate in the inquiry the employer cannot straightaway dismiss him, but he must hold and ex- parte inquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992 (65) FLR 674 ( All)".
Similar view has been taken by a Division Bench in case of Surya Bhan Singh vs. U.P. Lok Sewa Adhikari and others, 2008 (1) AWC 623 as follows;
8. Even in a case where only documentary evidence is to be relied upon for for proving the charges, it cannot be said that such documents need not be proved at all, may be that rigour of proof, as is required in the criminal trial are not needed but some sort of proof is necessary to attach authenticity to such document. While doing so, it cannot be lost sight of that the delinquent has every right to appear before the Enquiry Officer and to bring to his notice that the documentary evidence which is being made the basis of the charges cannot be relied upon for very many reasons, for example, the said record/documentary evidence is not admissible in law or for any other reason, such documentary evidence could not have been looked into and if such a documentary evidence is shown to the petitioner, he may adduce some evidence to rebut such documentary evidence and prove that the documentary evidence adduced by the department is not worthy of any reliance. Merely because the department was of the view that the charges are based on documentary evidence and, therefore, there was no necessity to either prove those documents/records or to give any opportunity to the petitioner in the enquiry proceedings cannot be said to be correct approach, according to law. ".
As regard to the arguments of Sri Sahai that Labour Court has no jurisdiction to reappraise the evidence and come to the different conclusion, I find no force in the submission. Supreme Court in the case of Workmen of Balmadies Estates V. Management, Balmadies Estates, (2008) 4 SCC 517 has held;-
10. "It is fairly well settled now that in view of the wide power of the Labour Court it can, in an appropriate case, consider the evidence which has been considered by the domestic tribunal and in a given case on such consideration arrive at a conclusion different from the one arrived at by the domestic tribunal. The assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a civil court could do when a lis is brought before it. The Evidence Act, 1872 (in short "the Evidence Act") is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility."
Supreme Court in the Case of Workmen Vs. Fire Stone Tyre and Rubber Co. of India (P) Ltd held as under;
36."We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron & Steel Co. Ltd. case existed. The conduct of disciplinary proceedings and the punishment to be imposed were all considered to be a managerial function with which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation of unfair labour practice. This position, in our view, has now been changed by Section 11-A. The words "in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified" clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron & Steel Co. Ltd. case, can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter."
Supreme Court in the case of DCM Vs. Ludh Budh Singh, 1972 ( 1) SCC 595 noted as follows;
25. We may also refer to the decision in Central Bank of India Ltd., New Delhi v. Prakash Chand Jain8 where after a reference to the principles laid down in Lord Krishna Textile Mills v. Workmen, it has been pointed out that the test of perversity of a finding recorded by a Tribunal or an Enquiry Officer will be that the said finding is not supported by any legal evidence at all. It has been further pointed out that a finding recorded by a domestic Tribunal like an Enquiry Officer will also be held to be perverse in those cases where the finding arrived at by the domestic Tribunal is one, which no reasonable person could have arrived at on the material before it. The position was summed up by this Court in the said decision as follows:
"Thus, there are two cases where the findings of a domestic tribunal like the Enquiry Officer dealing with disciplinary proceedings against a workman can be interfered with, and these two are cases in which the findings are not based on legal evidence or are such as no reasonable person could have arrived at on the basis of the material before the Tribunal. In each of these cases, the findings are treated as perverse."
From the above quoted judgments it emerges that the finding recorded by the Labour Court in the present case and its power to record a different finding cannot be doubted. The Labour Court was well within its right to arrive at a different opinion on the basis of the evidence on record. I am of the view that the finding of the Labour Court cannot be said to be perverse and do not warrant any interference under Article 226 of the Constitution.
As regard to the submission of Sri Sahai that Labour Court was not justified in granting the full backwages, I find considerable force in his argument. He placed reliance on a judgment of Supreme Court in the case of U.P. Brass Ware Corporation Limited and another Vs. Uday Narain Pandey reads as under;
17." Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/ or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched."
43.The changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the government in the wake of prevailing market economy, globalization, privatization and outsourcing is evident."
The similar view has been taken by the Supreme Court in the case of P.V.K. Distillery Limited 2009 (5) 705 and a judgment of this Court in the case of U.P.S.R.T.C through its Regional Manager, Moradabad. The relevant portion of the order of learned Single Judge passed in C.M.W.P. No. 19543 of 1999 reads as under;
" In the circumstances in stead of remitting the matter back award in question is modified to the extent that workman is entitled for 50 % of back wages of the entire amount, and not full back-wages. Award which is subject matter of challenge is modified accordingly. Qua the amount which has been deposited, pursuant to order passed by this Court follow up action be taken accordingly."
Lastly, Sri Sahai submitted that the Labour Court has swayed away by the fact that respondent no. 3 was acquitted in the criminal case and as such the impugned order is vitiated. The acquittal in criminal case would not make the order of the disciplinary authority illegal. The law on this issue has already been settled by the Supreme Court in a series of the cases. The Supreme Court in the case of 2011 (4) SCC 584, State Bank of Bikaner and Jaipur Vs. Nami Chand has held that subsequent acquittal by the criminal court will not in any way render completed disciplinary proceedings invalid or affect the validity of findings of guilt or a consequential punishment.
The same view has been taken in a recent case by the Supreme Court in the case of The Divisional Controller, K.S.R.T.C. Vs. M.G. Vittal Rao, JT 2011 (13) SC 247 reads as under;
"19. Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy. The judgment of this Court in Capt. M. Paul Anthony ( Supra) does not lay down the law of universal application. Facts, charges and nature of evidence etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic inquiry."
In my judgment there is no error in the order of the Labour Court. From the perusal of the award it is manifestly clear that the Labour Court has not based its finding on the basis of the acquittal of respondent no. 3 but has set aside the termination order on the ground that the charges have not been proved. In view of the said fact, the law mentioned in respect of the effect of the criminal proceeding has no bearing in the present case.
The upshot of the above discussions is that no ground is made out by the petitioner to interfere with the award of the Labour Court. However, the award is liable to be modified only with respect to the backwages. In the facts and circumstances of the case , the backwages is modified that the respondent no. 3 is entitled for 50 percent of the backwages of the entire amount. The impugned award is modified to the said extent.
The writ petition is disposed of accordingly. The parties will bear their own costs.
Order Date :- 2.1.2012 Gss