Punjab-Haryana High Court
Hari Chand vs Shri M.C. Bhardwaj, Presiding Officer, ... on 30 April, 1997
Equivalent citations: (1997)116PLR712
Author: H.S. Bedi
Bench: H.S. Bedi
JUDGMENT H.S. Bedi, J.
1. The petitioner Hari Chand was employed with respondent No. 2-M/s Atlas Cycle Industries Limited, Sonepat, in the Inspection Department and was a prominent leader of the Atlas Mazdoor Sangh, a registered and recognised trade union. It is the case of the petitioner that he was a protected workman within the definition given in explanation of Section 33(3) of the Industrial Disputes Act, 1947. It appears that in the year 1978, there was wide-spread unrest in the respondent's factory and the dispute between the workman, and the management, was referred for adjudication to the Labour Court vide reference dated 9th November, 1978. The petitioner was also placed under suspension on 7th October, 1978 allegedly on account of his trade union activities and certain criminal cases that had been registered against him. On 14th April, 1978 the respondent-company entered into a settlement with the workers union, of which the petitioner was an active leader and by virtue of the settlement, all the employee who had been under suspension were ordered to be reinstated. It is further the case of the petitioner that despite this settlement, the management refused to reinstate him. The petitioner however, persisted in getting back in his employment by virtue of the earlier settlement between the parties, but on finding that he could not do so, he claimed a reference to the Labour Court, which was made by the State of Haryana on 20th July, 1979. This reference was answered by the Labour Court holding that the petitioner as also certain other workmen were entitled to be taken back on duty under the terms of the settlement. It appears that despite the aforesaid order in his favour, the petitioner was not reinstated on account of some orders made by this Court in CWP No. 1911 of 1980. This petition was admittedly dismissed with the following observations on 15th October, 1980 :-
"The learned counsel for the petitioner states that this petition has become infructuous because the contesting respondents have been dismissed and therefore, the same may be dismissed as such. We order accordingly, However,, there will be no order as to costs."
The order of dismissal reproduced above, dated 10th October, 1980 has been put on record as Annexure P1 to this petition. In this order, it had been noted by the respondent Company that on account of the gravity of the charges against the petitioners, it had been decided to dismiss him from service without notice but as there was a dispute pending before the Industrial Tribunal, Haryana, the Company was seeking the permission of the Tribunal to terminate his services as required by Sub Section (3) of Section 33 of the Act. The petitioner accordingly put in appearance before the Tribunal and filed his reply to the application. The following issues were accordingly framed :-
1. Whether the application is not maintainable?
2. Whether the management is entitled to the permission to dismiss the workman as prayed for?
2. The Tribunal (then presided over by Shri M.C. Bharadwaj, respondent No. 1) on an exhaustive consideration of the evidence on record, came to the conclusion that it had been proved that the petitioner was an undesirable person who had misbehaved with the management and had assaulted his co-workers. It was further held that abusive language used by the petitioner was absolutely unjustified. It was also held by the Tribunal that the petitioner alongwith certain other persons had been presented Under Section 302/149 of the I.P.C. for having committed the murder of a co-worker and though he had been convicted Under Section 325/323/149 of the I.P.C. and as he had been arrested on a number of occasions even earlier justified the stand of the management that he should be dismissed from service. Permission was, accordingly, granted on 24th June, 1982 vide Annexure P2 to the petition, though no order was passed terminating the services of the petitioner subsequently thereto. Aggrieved thereby, the petitioner has come to this Court by way of the present petition.
3. In the present writ petition, two grievances had originally been made by the petitioner; firstly that the Presiding Officer of the Industrial Tribunal, Haryana, respondent No. 1 Sh. M.C. Bharadwaj, was not qualified to hold his office and as such, any order made by him in his official capacity was to be ignored and secondly, that as the order Annexure P2 had been made after the reference before the Labour Court had been decided that order too, could not have been made at that stage. It is the admitted position that only the second question now survives for consideration.
4. Mr. M.L. Puri, the learned counsel for the petitioner has argued that on a bare reading of Section 33 of the Act would reveal that before any order can be made thereunder, there must be a dispute pending either before the Conciliation Officers, Appellate Court, Arbitrator, Tribunal or a National Tribunal, and if there was no such dispute pending, Section 33 would have no application and as such the permission granted by the Industrial Tribunal vide Annexure P2 was beyond jurisdiction. Mr. Puri has also placed reliance on a judgment of the Supreme Court P.D. Sharma v. State Bank of India, 1969(1) L.L.J. 513 in support of his assertion. A reading of this judgment clearly indicates that the matter is squarely covered in favour of the petitioner and it would be wholly unnecessary to embark on a fresh discussion. The relevant observations of the Hon'ble Supreme Court are reproduced below :-
"While construing the scope of Sub-section (3) of Section 33 we have to bear in mind the fact that under the common law the employer has a right to punish his employee for misconduct. Therefore, all that we have to see is, to what extent that right is taken away by Sub-section (3) of Section 33. There is no doubt that at the time the application in question was made, an Industrial dispute was pending between the respondent and its employees. It is admitted that the appellant is a "protected workman". He had not been discharged or punished before the Industrial dispute was decided, though no doubt the respondent had proposed to dismiss him after obtaining the necessary permission from the Tribunal. The application for permission to dismiss him was made during the pendency of the principal dispute. No such permission would have been necessary if no industrial dispute between the respondent and its employees was pending. Hence, the sole reason for that application was the pendency of the Industrial dispute. Once the industrial dispute was decided, the (sic) placed on the common law statutory or contractual rights of the respondent stood removed and it was free to exercise those rights. On other words, the limitation placed on the respondent's rights by Sub-section (3) of Section 33 disappeared the moment the industrial dispute was decided. We are in agreement with the Tribunal that it had no competence to consider the application made by the respondent after the Industrial dispute was decided."
5. It is the conceded position before me that the application for permission to dismiss the petitioner from service had been made on 10th October, 1980 when a dispute was pending before the Labour Court or the Tribunal but on the date when the permission was granted on 24th June, 1982, all such disputes had come to an end. The ratio of the aforesaid judgment, therefore, clearly applies to the facts of the present case.
6. The question now arises as to what relief is to be granted to the petitioner. Admittedly, in the light of the aforequoted judgment, the permission to dismiss the petitioner was not required after 30 days of the passing of the award i.e. 22nd October, 1980. Mr. Mittal appears to be right that it was on account of a mistake committed by the management that it still continued to pursue the application under Sub-section (3) of Section 33 of the Act when in fact no such permission was then required. He has argued that from the documents and the finding on record i.e. Ex.P1 and Ex.R1 and the other material available, it was clear that as the petitioner was a most undesirable person, his continuation in the service of the respondent was harmful to the management and as such, reinstatement should not be ordered.
7. I have considered this argument of the learned counsel and find merit in it. It bears repetition that the petitioner had been charged on 7th October, 1978 for the following reasons :-
a) for riotious, violent and disorderly behaviour;
b) for wilful insubordination;
c) for acts subversive of discipline;
d) for offence involving moral turpitude punishable under Indian Penal Code;
e) for instigation and intimidation of the workers of Frame Assembly Section to resort to illegal and unjustified tool down strike in the Frame Assembly Section;
f) for leading demonstration inside manufacturing shops, shouting filthy slogans; abusive and threatening language against Factory Manager and Works Manager on fourth October and Seventh October, 1978."
In addition to this, it has come on record that the petitioner alongwith others had been charged for murder of Khem Chand and ultimately, was convicted for the lessor offences punishable Under Section 325/323/149 of the Indian Penal Code but the judgment of the learned Sessions Judge Annexure - R1 has given a clear indication as to the character and antecedents of the petitioner.
8. On this, Mr. M.L. Puri, the learned counsel for the petitioner has stated at the bar that if the petitioner is granted a compensation of Rs. one lac for the period that he was out of employment from 1982 till 1997, the petitioner will not claim reinstatement.
9. This petition is, accordingly, allowed, the order Annexure P2 is quashed, but in the light of the statement made by Mr. Puri, the petitioner (in lieu of reinstatement) shall be paid a lump sum of Rs. one lac by the respondent-management. If the amount is not paid by the respondent-management within a period of three months from today, the petitioner will also be entitled to reinstatement as a consequence of this Court's order. No costs.