Rajasthan High Court - Jaipur
Kalyan Dutt Sharma vs Judge, Industrial Tribunal on 1 June, 2001
Equivalent citations: 2002(5)WLC586, 2003(2)WLN215
JUDGMENT Madan, J.
(1). The undisputed facts are that on 13.9.1965 the petitioner was appointed as 'Karya Karla' in the services of Rajasthan Khadi Vikas Mandal, Govind Garh, Distt, Jaipur, respondent No. 2. He was working in the services of the said organisation till 8.5.1978 when he was served with a charge sheet by the management on account of irregularities committed by him while performing his duties with the said organisation. He submitted reply to the charge sheet. The petitioner denied all the charges being false, baseless and being of no consequence. It has been alleged that since the management was bent upon to victimise the petitioner, a domestic enquiry was held in the matter by Shri D.N. Sharma, a permanent advocate of respondent No. 2. The contention of the petitioner is that he was not supplied with the enquiry report recommending his dismissal from the services of respondent No. 2 therefore, he could not file representation against his dismissal order dt. 6.9.1978. Thereafter, respondent No. 2 filed an application for approval of the said dismissal order under Section 33 of the Industrial Disputes Act, 1947 (for short "the ID Act") before the competent authority in respect of action taken by the employer which was granted. Thereafter, the petitioner raised an industrial dispute which was referred for adjudication to the State Govt. The petitioner filed his statement of claim before the Industrial Tribunal while respondent No. 2 filed its reply. The learned Judge, Industrial Tribunal passed its award on 5.12.1990 justifying the action of respondent No. 2. It was published on 15.4.1991. It is under the aforesaid circumstances that the petitioner has moved to this Court by way of this writ petition which is now disposed of finally by this order.
(2). During the course of hearing, learned counsel for the petitioner assailed the impugned award on the following grounds:-
"(a) that the award of the learned Tribunal is contrary to law and facts apparent on the face of the record;
(b) the learned Tribunal has also failed to exercise jurisdiction vested in him under Section 11A of the ID Act;
(c) that the learned Tribunal has not cared to appreciate that the Enquiry Officer was the permanent counsel of respondent No. 2. He himself has represented respondent No. 2 before the Tribunal against the petitioner. Therefore, he could not be said to be an impartial Judge. His attitude has been amply proved by his conduct during the enquiry proceedings as well as by giving his findings. His findings about some charges were not having been proved but a show of impartiality while he has found the other charges proved, so as to give pretext to respondent No. 2 to victimise the petitioner;
(d) that the learned Tribunal has also not appreciated that copies of the enquiry proceedings as well as the enquiry report was not supplied to him and he was not given any opportunity before passing dismissal order. It has been finally settled by the Hon'ble Supreme Court that an employee must be heard before passing any punishment against him on the basis of the enquiry held against him. This opportunity is a part of natural justice and in its absence the punishment imposed on the employee is invalid. Needless to point out that this opportunity can only be availed by the employee when he is supplied with a copy of enquiry report and other enquiry record;
(e) that the learned Tribunal has not adopted a correct approach while considering the evidence of enquiry record. After insertion of Section 11A of the I.D. Act, the powers of the Industrial Tribunal in such matter of reference is that of an appellate Court and, therefore, he should have reappreciated the evidence and should have come to his own conclusions he has only considered the evidence to see the evidence that whether the findings of the enquiry officer are not completely unjustified. This approach is not in accordance to law;-
(f) that even the findings of the enquiry officer were based on extraneous consideration a charge of pilfering the material belonging to the Bhandar could only be proved by the records and discrepancies therein, but admittedly there is no such discrepancy in the records and stock of the cloth. Simply by statement of Tailor that he was given less clothes for making dresses is no evidence at all particularly when no dress was produced during the enquiry. Thus, the findings of the Enquiry Officer which have been approved by the respondent No. 1 is based only on conjectures and surmises. The same can be said about the two other charges, which in fact are no charge at all; and
(g) that even the charges are of trivial in nature on the face of them. Punishment of dismissal from services of a person with about 13 years of service is shockingly disproportionate. The learned Tribunal has not exercised his powers under Section 11A of the ID Act properly."
(3). On the quantum of punishment i.e. dismissal from service looking to the charges, learned counsel for the petitioner contended that a lesser punishment should have been imposed on him as it was not justified keeping in view the requirement of the provisions of Section 11A of the ID Act. In this regard, the learned counsel for the petitioner contended that where punishment imposed on an employee is disproportionately excessive, the Labour Court/Tribunal in exercise of its discretion under Section 11A of the Act can reduce the punishment and thereafter it is for this Court to review the order of the learned Tribunal as regards quantum of punishment imposed on the petitioner. Section 11A of the Act, reads, as under:-
"11-A. Powers of Labour Courts. Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen-Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if and as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
Provided that in any proceeding under this Section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."
(4). In reply to show-cause notice, respondent No. 2 has contended in the reply that since the award was passed by the learned Tribunal on the basis of due appreciation of material available on record, looking to the seriousness of the charges and the responsible position which the petitioner was holding at the time of his dismissal, after he was found guilty of committing of serious misconduct, theft, dishonesty in working of answering respondent which was proved on the basis of evidence on the record, his guilt having been established, he was rightly dismissed by the answering respondents. Moreso, the learned Tribunal held the action of respondent No. 2 fully justified dismissing the services of the petitioner, hence, it was not open for the petitioner to assail the action of respondent No. 2 on the question of quantum of punishment imposed on him and since the Reference had already been answered in favour of respondent No. 2 and the impugned award being in consonance with the provisions of Section 11A of the ID Act keeping in view the facts and circumstances of the case, the petitioner had rightly been dismissed from the services of respondent No. 2 and as such, the learned Tribunal had committed no error of law or fact which would justify interference by this Court in writ jurisdiction under Art. 227 of the Constitution of India.
(5). I have heard the learned counsel for the parties at length and perused the record as well as the findings recorded by the learned Tribunal. From the perusal of charge-sheet vide Annexure- 1 dt. 8.5.1978, it is revealed that on the complaint dt. 18.12.1976 following statement of allegations were against the petitioner:-
^^Jh dY;k.k nÙk th 'kekZ] dk;ZdÙkkZ }kjk& Jh O;oLFkkid th] [knh vkJe uoyx<+ HkxhjFkflag th cqjMd egksn;] gekjs [kknh vkJe] uoyx<+ ds O;oLFkkid Jh HkkxhjFk th cqjMd us vius i= fnukad 18-12-76 ds }kjk vkids fo#} fuEufuf[ky f'kdk;rsa dh Fkhµ 1- ;g fd vkius Åuh dksfVax esjhuk 2-80 ehVj nj #- 31-00 dh yh mldk uoyx<+ esa gh dksV cuck;k ijUrq mldk fcy ugha cu;k] u dgha ntZ fd;kA 2- ;g fd vkids Hk.Mkj ls [kknh lQsn 7-50 ehVj nj 7015 okyh ysdj 2 yqxM+h cuokbZ] ijUrq mldk Hkh fcy ugh cuk;kA 3- ;g fd vkius nks lwfr lQsn ua-
80 ds 2( 3 itkesa cuok;s ijUrq] bldk Hkh dksbZ fcy ugha cuk;kA ;g fd mijksDr f'kdk;rksa ds fy, vkids fo#} izkjfEHkd tkap dh xbZ Fkh vkSj vkids fnukad 28-11-77 ds tokc dk Hkh voyksdu fd;k x;kA blds i'pkr~ ;g mfpr le>k x;k fd vkids fo#} bu vfu;ferrkvksa ds fy, foHkkxh; tkap djkbZ tkosaA (6). From the above, it is revealed that for the above statement of allegations, preliminary enquiry was held against the petitioner and petitioner also filed his reply dt. 28.11.1977 and after scrutinising the reply, the Management found it necessary to hold Departmental Enquiry and framed following charges against the petitioner:-
^^1- ;g fd vkids [kqn ds fy, Åuh dksfaVax esjhuk 2-60 ehVj nj #i;s 32-00 dh yh vkSj mldk dksV cuok;k] ftldh lwpuk vkius HkaMkj ds O;oLFkkid dks Hkh ugha nh] uk gh diM+k ysus dh muls Lohd`fr gh yhA u gh vkius ml dksV dk fcy cuk;kA bl izdkj ls vius laLFkk dks uqdlku igqapkus ds fy, ,slk fd;k vkSj vkfFkZd uqdlku igaqpk;kA vkidk ;g dk;Z xaHkhj nqjkpj.k dh ifjHkk"kk esa vkrk gSA 2- vki ij nwljk vkjksi ;g gS fd vkius [kknh Hk.Mkj] uoyx<+ ds O;oLFkkid dks fcuk lwpuk fd;s lQsn [kknh 7-50 ehVj #- 7-15 nj dh ysdj 2 ywxM+h cuokbZ] bldk dksbZ fcy Hkh ugha cuk;kA bl izdkj vkius vuqfpr ykHK dek;kA vkids bl dk;Z ls laLFkk dks vkfFkZd uqdlku mBkuk iM+kA vkidk ;g dk;Z xaHkhj nqjkpj.k dh ifjHkk"kk esa vkrk gSA 3- vki ij rhljk vkjksi gS fd vkius nks lwrh lQsn ua- 80 Hk.Mkj ls ysdj 2 iktkesa cuok;sA bl diM+s dk Hkh dksbZ fcy ugha cukok;k] uk gh dgha bUnzkt fd;kA bl izdkj ls vkius laLFkk dks /kks[kk nsdj vuqfpr ykHk mBk;kA vkidks ;g dk;Z xaHkhj nwjkpj.k dh ifjHkk"kk esa vkrk gSA (7). Apart from above, following additional charges were also framed against the petitioner:-
^^1- ;g fd vki [kknh vkJe] uoyx<+ ls [kknh Hk.Mkj ckiw cktkj mn;iqj dks LFkkukUrj.k ij tkus ds fy, vkJe ds lkeku esa ls tks vkids ikl FkkA yksVk ux 1- lHkh dk;ZdrkZvksa ds lkeus ys x;sA vkius tokc esa yksVk ys tkus ls bUdkj fd;k gSA ftlls vkidh cnfu;fr lkfcr gksrh gSA 2- ;g fd vki Jh uojax flag th okVj oDlZ uoyx<+ ls [kknh m/kkjh dh #- 14-10 dh jde yk,] fdzUrq vkius bl jde dks Hk.Mkj ds fglkc ls tek ugha fd;kA bl izdkj vkius laLFkk dh #- 14-10 dh /kujkf'k dk xcu fd;k tks xaHkhj nqjkpj.k dh ifjHkk"kk esa vkrk gSA 3- ;g fd [kknh Hk.Mkj] ckiwcktkj] mn;iqj ds ftl fjgk;lh dejs dh Jh eksguyky th tseu] Åuh drkbZ dsUnz uoyx<+ dks LFkkukUrj.k ij tkus ds fy, [kkyh fd;k Fkk] mlesa vkius fcuk laLFkk ds ea=h vFkok O;oLFkkid [kknh Hka.Mkj] ckiw cktkj mn;iqj dh btktr ls jguk 'kq:
dj fn;k tcfd ijEijkuqlkj mn;iqj esa vkius izFke dk;Zjr dk;ZdrkZ Jh jketh flag th dks og dejk fuokl ds fy, fn;k tkuk FkkA vkidks fy[kk x;k Fkk fd izkFkfedrk ds vk/kkj ij laLFkk dk [kkyh dejk fuokl ds fy, Jh jketh flag dks fn;k tkrk gSA vki dejk [kkyh dj nsaA vU;= fdj;s ij edku ys ysaA laLFkk ls vkidks fu;ekuqlkj fdjk;k feysxk fdUrwq vkius dejk [kkyh ugha fd;kA bl izdkj vki laLFkk ds ea=h ds vkns'k dh voKk djus ds nks"kh gSA vkidk ;g d`R; xaHkhj nqjkpj.k gSA 4- vkius vius i= fnukad 10-3-77 }kjk [kknh vkJe uoyx<+ ds O;oLFkkid Jh HkxhjFk flag th cqjMd ds fo:ð f'kdk;rsa dh tks izkjfEHkd tkap ls lgh ugha izrhr gksrhA vr% vki laLFkk ds dk;ZdrkZ Jh HkkfxjFk flag th cqjMd ds fo:ð >wBh f'kdk;r djus dk vkjksi yxk;k tkrk gS] tks xaHkhj nqjkpj.k gSA vr% vkidks fy[kk tkrk gS fd vki bl vkjksi i= dh izkfIr ds 48 ?kaVs ds vUnj&vUnj fuEu gLrk{kjdrkZ ds le{k viuk tokc Mkd }kjk izLrqr djsa fd D;ks u vkids fo:ð dkuwuh rkSj ij foHkkxh;
dk;Zokgh dh tkosaA** (8). The petitioner submitted his reply to the above charges vide Annexure-2. The Enquiry Officer vide Annexure-3 dt. 9.8.1978 submitted its report to the Management of respondent No. 2 holding the petitioner guilty of misconduct for charge Nos. I to 3 as regards the 1st Part while acquitted him from charge Nos. 1 to 3 and held further guilty of misconduct for charge No. 4 as regards the IInd Part.
(9). Keeping in view the above report submitted by the Enquiry Officer proving the charges of misconduct against the petitioner, the Management i.e. respondent No. 2 vide Annexure-4 dt. 6,9.1978 terminated the services of the petitioner w.e.f. 6.9.1978.
(10). Thereafter, the petitioner raised an industrial dispute before the Industrial Tribunal and the learned Tribunal passed the award dt. 5.12.1990 upholding the order of dismissal dt. 6.9.1978 passed by respondent No. 2 observing that dismissal of the petitioner was appropriate and legal and he is not entitled to any relief and the award was directed lobe published under Section 17(1) of the Act.
(11). Keeping in view the nature of financial irregularities on the part of the petitioner for which he was given full opportunity of contesting by way of leading evidence in rebuttal, charges stood fully proved and established, I am of the view that there is no scope for relaxation on the quantum of punishment and as such it cannot be assumed that the petitioner's dismissal from the services of respondent No. 2 is disproportionate to the charges levelled against him by the management of respondent No. 2.
(12). Thus, keeping in view the charges pertaining to the financial irregularities committed by the petitioner which stood fully proved not only on the basis of preliminary enquiry conducted by respondent No. 2 but also on the basis of final report submitted by the enquiry officer and lateron on the basis of award passed by the Tribunal, I do not find any illegality muchless any jurisdictional error or any perversity on the part of the learned Tribunal for having upheld the order of dismissal of the petitioner from the services of respondent No. 2.
(13). Learned counsel for the petitioner in support of his contentions advanced by him hereinabove, placed reliance upon the judgments of the Apex Court as well as judgment of the Full Bench of this Court in Ved Prakash Gupta v. Delton Cable India (P) Ltd. (1), RSRTC v. Gopal Singh (2), and The Managing' Director, U.P. Warehousing Corporation v. Vijay Narayan Vajpayee (3).
(14). In Ved Prakash Gupta (supra), the question which arose for consideration before the Apex. Court was that substantial part of the work of the concerned employee consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch-towers or around the factory or to accompany visitors to the factory and making entries in the visitors' register as regards the visitors and in the concerned registers as regards materials entering or going out of the premises of the factory. In the absence of any written directions specifying his duties the employee also did other items of work such as signing identity cards of workmen, issuing some small items of stores like torch-cells etc., to his subordinate watchmen which can be got from the stores even under the signatures of watchman and filling up application forms of other workmen and counter signing them or recommending advances and loans or for promotion of his subordinates. However, he had no power to appoint or dismiss any workman or order any enquiry against any workman.
(15). In these circumstances, the Apex Court held that dismissal of employee on charge of abuse of some worker and officer of management is unjustified, particularly in absence of any previous adverse remark against him.
(16). The ratio of the aforesaid decision, in my view, is not attracted to the facts and circumstances of this case.
(17). In R.S.R.T.C. v. Gopal Singh (supra), the term of reference was made by the learned Single Judge in SBCWP No. 6345/92 to the Full Bench of this Court. In the first writ application filed by the Rajasthan State Road Transport Corporation the award dated December 3, 1991 as passed by the Labour Court, Bhilwara in Labour Case No. 9/91, formerly numbered as 39/87 has been impugned by the R.S.R.T.C. whereby the learned Judge, Labour Court having found the order of termination dated October 8, 1994 to be unsustainable directed reinstatement of the workman Gopal Singh treating his case to be one of continuous employment and observed that said Gopal Singh would be entitled to 50% of his back wages till the date of the award and would be entitled to full wages thereafter. His two annual grade increments were withheld. The RSRTC was also declared to be entitled to deduct a sum of Rs. 8000/- to which extent it sustained as a loss on account of the accident. The workman Gopal Singh also challenged the said award in S.B. Civil Writ Petition No. 3784/93 wherein he prayed inter- alia for a relief to the effect that he should be exonerated from all the charges and he was liable to be reinstated by the Court treating him to be in continuous service with all consequential benefits. His contention inter-alia was that the finding of misconduct recorded against him by the Labour Court was not sustainable in the eye of law.
(18). The learned Single Judge had taken into consideration the decisions of the Division Bench in R.S.R.T.C. v. Habib Khan (4), and R.S.R.T.C. v. Judge, Industrial Tribunal Bikaner (5), and the decision of the Single Bench in R.S.R.T.C. v. Kailash Chandra Sharma (6).
(19). It was contended on behalf of the RSRTC before the learned Single Judge inter-alia that once the guilt of the delinquent workman is found proved, it was not open for the said Court or the Tribunal to interfere with the quantum of punishment. The discretion under Section 11A of the Industrial Disputes Act, 1947 however could be sparingly exercised only in case where the Court chose to interfere in matters of excessive punishment which was harsh and out-weighed the gravity of the offence.
(20). Keeping in view the facts and circumstances of the case, the Full Bench came to the following conclusion:-
"28. In the light of the discussion aforesaid, our conclusion should:-
(a) With regard to question (a) even if the misconduct is proved there can be an interference for good and sufficient reasons under Section 11A of the Act of 1947.
(b) With regard to question (b) the power under Section 11A has to be exercised judicially and the Labour Court, Tribunal or the National Tribunal is only expected to interfere with the decision of the Management only when it is satisfied that the punishment imposed is shockingly disproportionate to the degree of guilt of the workman concerned. It cannot OP equated with the power of 'veto.
(c) With regard to question (c) the High Court in its exercise of supervisory writ jurisdiction under Articles 226 and 227 of the Constitution of India has indeed a limited jurisdiction to interfere with the impugned award. As a general rule, the High Court will not, interfere unless the order of the Labour Court, Tribunal or National Tribunal is perverse or not based on any evidence or grossly illegal or based on a complete misconception of law or it is such that no reasonable man would come to the conclusion about. There is no hard and fast rule that the High Court is always to send the matter back to the Labour Court, Tribunal or National Tribunal for appropriate adjudication and for passing appropriate punishment in accordance with law.
(d) with regard to question (d) we need not specifically answer the question because we think we should not look at the problem from the particular angle that the reputation of the Corporation has been lowered down in the estimation of the passengers boarding the bus as well as the public at large."
(21). On the quantum of punishment, it was held by the Full Bench that since the Labour Court had already made interference by exercising its jurisdiction under Section 11A of the ID Act, it was thought proper that there is no gross illegality so as to call for interference by this Court. With the said observations, the writ petitions were dismissed and thus the reference was answered accordingly.
(22). Without disputing the ratio of Full Bench in all respects, in my view the ratio and facts of the above case are not applicable to the instant case being distinguishable though, I am in full agreement with the finding of the Full Bench, as under:-
"the High Court in its exercise of supervisory writ jurisdiction under Articles 226 and 227 of the Constitution of India has indeed a limited jurisdiction to interfere with the impugned award. As a general rule, the High Court will not, interfere unless the order of the Labour Court. Tribunal or National Tribunal is perverse or not based on any evidence or grossly illegal or based on a complete misconception of law."
(23). The ratio of the decision of the Apex Court in The Managing Director, UP Warehousing Corporation (supra) is not attracted to the facts and circumstances of the instant case.
(24). In rebuttal, Mr. Manoj Sharma, learned counsel for the respondents has also placed reliance upon judgments of this Court in Janatha Bazaar South Kanara Central Co-operative Wholesale Stores Ltd. and Ors. v. Secretary, Sahakari Noukarara Sangha and Ors. (7) and State Bank of India v. Tarun Kumar Banerjee and Ors. (8).
(25). In Janatha Bazaar South Kanara Central Co-operative Wholesale Stores Ltd. (supra), the Labour Court in reference found the charges of misappropriation and breach of trust against dismissed workmen as proved. Consequently, in exercise of powers under Section 11A of the ID Act, the Labour Court directed reinstatement of workmen with 25% of back wages and imposed penalty of 5 increments with cumulative effect. In appeal, the Apex Court held that the Labour Court had erred in setting asiding the dismissal of workmen. Apex Court further observed that once the misappropriation stood proved, showing sympathy was held uncalled for since the finding of the Labour Court, confirmed by the Single and also the Division Bench, was that the charges against the four workmen (employees) for breach of trust and misappropriii lion of funds entrusted to them had been established.
(26). In Stale Bank of India v. Tarun Kumar (supra), the bank employee was dismissed from service on the charge of misconduct on the basis of domestic enquiry.
The Tribunal while holding the domestic enquiry to be fair and valid but set aside the dismissal order on the ground that finding of guilt was not just on the evidence on record. In appeal, the learned Single Judge quashed the order of Tribunal but the Division Bench reversed the same holding that the learned Single Judge erred in interfering with the award of Tribunal. In SLP preferred by the State Bank of India, the Apex Court held that since the charge of misconduct having been proved to the hilt, there was no reason for the Tribunal to take a contrary view. Since the Tribunal's view having been found to be fallacious, the learned Single Judge was justified in interfering with the award and the Division Bench had erred in upholding the Tribunal's view.
(27). The Apex Court further held that 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. The order of the learned Single Judge was consequently restored on the ground that it was not open to the Tribunal to interfere with the quantum of punishment since the Tribunal having held that the domestic enquiry as fair and valid, thus, the scope for interference was very limited.
(28). I am in full agreement with the ratio of the aforesaid decision of the Apex Court as I do not find any illegality or perversity in the impugned order of the Tribunal upholding the dismissal order of the petitioner passed by respondent No. 2 which is based on appreciation of evidence on the basis of misconduct being proved in the enquiry conducted by the respondent Management and looking ft the gravity of the charges of misconduct the punishment of which i.e. dismissal of the petitioner from services in my view, is appropriate and to which no interference is called for.
(29). As a result of above discussion, I do not find any substance in any of the contentions of the learned counsel for the petitioner. Resultantly, this writ petition fails and is hereby dismissed. No order as to costs.