Telangana High Court
The Peerless General Finance ... vs The Honble Industrial Tribunalii, on 19 January, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.19513 OF 2003
ORDER
This Writ Petition is filed by the petitioner company seeking a Writ of Certiorari to call for the records and quash the award in I.D.No.37 of 2001 dt.12.06.2003 on the file of the Industrial Tribunal- II at Hyderabad and to grant such other relief to which the petitioner is entitled.
2. Brief facts of the case are that the 2nd respondent employee, one Mr. Bikshapathy, was appointed in the petitioner organization during February, 1986 as sub-staff. He was issued with a charge sheet on 12.10.1995 by the petitioner with certain allegations and was accordingly suspended. The employee submitted his explanation on 27.10.1995, but since it was not satisfactory to the management, an enquiry was ordered. The enquiry was conducted following the principles of natural justice and thereafter, on the basis of the findings of the enquiry officer holding the employee as guilty of the charges, the employee was removed from service. The employee preferred an Appeal to the Chief Executive of the organization, but the same was dismissed. Thereafter, the employee filed an ID before the Industrial Tribunal-II, Hyderabad. The Labour Court decided the validity of the enquiry proceedings by order dt.01.03.2002 and has held the enquiry W.P.No.19513 of 2003 2 to be valid and that there was no force in the contention of the employee that reasonable opportunity was not given to him and that the enquiry was conducted in a biased manner. Thereafter, the Tribunal went into the merits of the enquiry report and found that the allegation against the employee that he had removed some papers from the records of the organization and had given them to two persons by name Mr. C. Ramakrishna and Mr. C. Pandurangam who used the records for their own selfish needs and thereafter, he brought them back and placed them in the records of the organization, is not proved. The Labour Court found that the organization had relied upon the statements of Mr. Ramakrishna and Mr. Pandurangam to hold the charges as proved against the employee, but there was no cross- examination of the said persons, i.e., Ramakrishna and Pandurangam and therefore their statements alone cannot carry any weight. Thus observing, the Labour Court has held that the punishment of removal from service is disproportionate to the charges framed against the employee. Therefore, the punishment of removal from service was set aside and the employee was reinstated into service with continuity of service and 50% back wages. Against this Award of the Labour Court, the Management has filed this Writ Petition.
3. Learned counsel for the petitioner-Management, Sri Koka Satyanarayana Rao, submitted that the employee was found guilty by the enquiry officer and after finding that the enquiry has been validly held without any bias and by following the due process, the Labour W.P.No.19513 of 2003 3 Court, ought not to have interfered with the punishment of removal from service awarded to the employee. He submitted that by holding that the enquiry was valid, the Management was thereafter deprived of an opportunity to justify its action of removal from service. He submitted that it is the duty of the Labour Court to give a finding with regard to the departmental enquiry if any objection is raised and having held it to be valid, unless the punishment given to the employee is disproportionate or shockingly excessive, the Labour Court cannot interfere or should not have interfered with the punishment of removal from service. He placed reliance upon the following case law in support of his contentions:
(1) Doom Dooma Tea Co., Ltd. Vs. Assam Chah Karmachari Sangha and another1 (2) Nirmala J.Jhala Vs. State of Gujarat and another2 (3) Depot Manager, A.P. State Road Transport Corporation Vs. Mohd. Yusuf Miya and others3 (4) Christian Medical College Hospital Employees' Union and another Vs. Christian Medical College Vellore Association and others4 (5) Bharat Heavy Electricals Ltd. Vs. M. Chandrasekhar Reddy and others5
4. None appeared for the respondent employee in spite of fixing this Writ Petition for hearing on 10.11.2021 and 11.11.2021. 1 1960 (2) LLJ 56 2 2013 (4) Scale 579 3 (1997) 2 SCC 699 4 1988(1) LLN 9 5 2005 (1) Scale 547 W.P.No.19513 of 2003 4 Therefore, after hearing the learned counsel for the petitioner, the Writ Petition is disposed of as under.
5. Having regard to the rival contentions and the material placed on record, this Court finds that the Labour Court has considered that, except for the statements of Mr. Ramakrishna and Mr. Pandurangam, there is no evidence put forward by the employer/petitioner to prove the charges against the employee.
6. The judgment in the case of Doom Dooma Tea Co., Ltd. Vs. Assam Chah Karmachari Sangha and another (1 supra) is relied upon by the learned counsel for the petitioner for the proposition that where the employee has understood the scope of the notice, then he is in a position to give any defence in respect of the allegations. In this case, according to the learned counsel for the petitioner, the employee was well aware of the facts of the case and therefore, he never took an objection before the enquiry officer or never sought cross-examination of those two persons and therefore, the Labour Court ought not to have interfered with the findings of the enquiry officer. However, this Court is of the opinion that this decision is not applicable to the case on hand because the issue therein was whether the notice issued was capable of any other understanding and whether the employee therein could have understood it in any other manner, whereas in the case before this Court, the issue is about the merits of the finding of the enquiry officer.
W.P.No.19513 of 20035
7. The other decision relied upon by the learned counsel for the petitioner is in the case of Nirmala J.Jhala Vs. State of Gujarat and another (2 supra) for the proposition that the disciplinary proceedings are not a criminal trial and in spite of the fact that the same are quasi- judicial and quasi-criminal, doctrine of proof beyond reasonable doubt does not apply in such cases, but the principle of preponderance of probabilities would apply and the Court has to see whether there is any evidence on record to reach the conclusion that the delinquent had committed a misconduct.
8. Similar view was expressed in the case of Depot Manager, A.P. State Road Transport Corporation Vs. Mohd. Yusuf Miya and others (3 supra).
9. As far as the ratio of these judgments (2 and 3 supra) is concerned, there is no dispute that the departmental enquiry cannot be equated with criminal enquiry. However, in the case before this Court, the only basis for the punishment are the statements of Mr. Ramakrishna and Mr. Pandurangam which were allegedly recorded by the Vigilance Officer at their residences and they were not examined at all during the enquiry and therefore, they could not be cross- examined by the employee. Therefore, preponderance of probability also is in favour of the employee.
10. In the case of Christian Medical College Hospital Employees' Union and another Vs. Christian Medical College W.P.No.19513 of 2003 6 Vellore Association and others (4 supra), the Hon'ble Supreme Court has held that the power under Section 11A of the Industrial Disputes Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11A of the Industrial Disputes Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned and that the Tribunal has to give reasons for its decision. This Court does not find the decision of the Labour Court to be in contrary to this decision of the Hon'ble Supreme Court. Therefore, it is not understandable as to how this decision is helpful to the Management.
11. The decision of the Supreme Court in the case of Bharat Heavy Electricals Ltd. Vs. M. Chandrasekhar Reddy and others (5 supra) is to the effect that where a misconduct is proved and the employer loses its confidence vis-à-vis the employee, it will be neither proper nor fair on the part of the Court to substitute the finding and confidence of the employer with that of its own in allowing reinstatement. This Court finds that in this case also, the finding of the Labour Court is in accordance with this judgment of the Supreme Court and therefore, it does not go against the employee.
12. The other decisions relied upon by the learned counsel for the petitioner are also to the same effect. Since it was already held that the W.P.No.19513 of 2003 7 decision of the Labour Court is not in violation of any of the principles laid down by the Hon'ble Supreme Court, this Court does not see any reason to interfere with the findings of the Labour Court.
13. The learned counsel for the petitioner submitted that the employee was not reinstated into service as this Hon'ble Court had granted interim suspension subject to the condition of payment of wages as provided under Section 17B of the Industrial Disputes Act vide orders dt.16.09.2003. It is submitted that the employee has since retired on 07.09.2021 and all the payments were made to the employee as per the interim directions.
14. Since more than 15 years have lapsed and the employee has been given the benefit of Section 17B of the Industrial Disputes Act all these years, this Court finds that back wages for the period of pendency of Writ Petition need not be paid to the employee, as he has been sufficiently compensated by virtue of the payment of wages under Section 17B of the Industrial Disputes Act. This Court therefore does not see any reason to interfere with the findings of the Labour Court with regard to 50% of back wages during the period of removal to reinstatement.
15. The Writ Petition is accordingly dismissed. No order as to costs.
W.P.No.19513 of 20038
16. Pending miscellaneous petitions, if any, in this Writ Petition shall also stand dismissed.
___________________________ JUSTICE P. MADHAVI DEVI Dt. 19.01.2022 Svv