Punjab-Haryana High Court
Kimti Lal, Workman, Panipat Coop. Sugar ... vs State Of Haryana And Ors. on 30 August, 1993
Equivalent citations: (1994)IILLJ1062P&H, (1994)106PLR116
JUDGMENT Jawahar Lal Gupta, J.
1. The petitioner, a Store Clerk with the Panipat Cooperative Sugar Mills Ltd., Panipat (Respondent No. 2) was dismissed from service. He filed a complaint under Section 33A of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') alleging inter alia that the order of dismissal had been passed during the pendency of a dispute in violation of the provision of Section 33(2) without paying the wages for one month and seeking the approval of the Tribunal. He challenged the order of dismissal and claimed reinstatement with full back wages, This complaint having been dismissed by the Industrial Tribunal Haryana vide its award dated May 5, 1982, the petitioner has approached this Court through the present writ petition. A few facts may be noticed.
2. The petitioner was working as Store Clerk with Respondent No. 2 A charge-sheet dated May 31, 1979 was issued to him. It was alleged that "on February 26, 1979, while on duty in the stores, you were supposed to weigh the trucks which used to fetch the firewood to the mills from different suppliers. You allegedly wrote the gross weight of the firewood in respect of truck No. HRG 5235 as 129.50 quintals which was later on overwritten by you and the figure was made to appear as 189.50 quintals." It was further alleged that "similarly for truck No. HD-490, you recorded the gross weight as 69 quintals which later on seems to have been changed to 189 quintals". On these premises, it was alleged that the petitioner had "commited" serious gross misconduct.....ulterior motive in connivance with the firewood suppliers thereby causing a financial loss to the mills to the amount of Rs. 1240...". The petitioner filed his reply. An enquiry into the matter was ordered. Mr. J.N. Goel, Electrical Engineer, was appointed as the Enquiry Officer. Vide his report dated October 8, 1979, Mr. Goel found that the charges were not proved against the petitioner. A copy of this report has been appended as Annexure P. 1 with the writ petition. It appears that the competent authority was not satisfied with the findings recorded by the Enquiry Officer. It forwarded the relevant documents on which the entries were alleged to have been changed to the Director, Forensic Laboratory, Haryana, Madhuban (Karnal). A report was received vide No. 80/G-141/FSL observing that "both the cards were found tampered with." Consequently, it asked Mr. J.N. Goel to review the enquiry in the light of the fresh evidence. Vide his letter dated April 1, 1980 (a copy of which has been produced as Annexure R.1 with the written statement), Mr. Goel refused to go into the matter. Thereafter, Mr. R.S. Malik, an advocate of Panipat, was appointed as the Enquiry Officer as he was well versed in law. The petitioner was informed about the decision of the Management to conduct further enquiry. He, however, did not associate himself with the proceedings. Mr. R.S. Malik held the enquiry and found that the charges were proved. Vide order dated August, 5 1980, the petitioner was ordered to be dismissed from service(P-4.) The petitioner made a complaint under Section 33A of the Act vide his application dated August 12, 1980, a copy of which has been produced as Annexure P.2 with the writ petition.
3. The petitioner avers that an earlier dispute involving the workmen of the Mill including him was pending with the Industrial Tribunal. The order of dismissal was passed during the pendency of those proceedings in contravention of the provision of Section 33 of the Act. On these premises, he challenged the order of dismissal.
4. The Tribunal framed the following three issues:-
(1) Whether the complainant is a concerned workman?
(2) Whether the Management has contravened the provision of Section 33? If so, to what effect?
(3) Whether the dismissal is unjustified on its merits?
After considering the matter, the Tribunal recorded a finding in favour of the petitioner on the first two issues. However, on Issue No. 3 it inter alia found that the act of "forgery by which the management was put to undue loss was an act of misconduct which the Management has clearly brought home. This issue is, therefore, decided against the workman." Accordingly, the Tribunal held that the petitioner was not entitled to any relief. A copy of this award has been produced as Annexure P.3 with the writ petition. Aggrieved by this award, the petitioner has approached this Court through the present writ petition.
5. Mr. Surya Kant, learned counsel for the petitioner, has raised two contentions. Firstly, it (P-5) has been contended that the enquiry proceedings conducted by Mr. R.S. Malik were wholly without jurisdiction and were vitiated on account of his bias. Secondly, it was contended that the Tribunal having found that the Management had not complied with the provision of Section 33(2)(b) of the Act, it could not have rejected the petitioner's complaint.
6. Neither of the contentions has any merit. Mr. Malik is not a party to these proceedings. The sequence of events as delineated above shows that after the submission of the report by Mr. J.N. Goal, the respondent had received the report from the Director, Forensic Laboratory, According to this report, the two documents had been tampered with. The management could not have relied upon this report without putting it to the petitioner. Consequently it decided to hold further enquiry into the matter, Mr. J.N. Goal was asked to conduct the enquiry. On his refusal to do so, the Management appointed Mr.R.S. Malik, as the Enquiry Officer. This action of the Management was in strict conformity with the principles of natural justice. It was fair and reasonable. It was calculated to afford a due and a reasonable opportunity to the petitioner. For reasons best known to him, petitioner did not participate in the enquiry. As a result, Mr. Malik gave his findings. In this process no rule or provision of law can be said to have been violated.
7. Mr. Surya Kant, however, submitted that the Management had no jurisdiction to order a second enquiry. It is not possible to accept this contention. The report given by Mr. J.N. Goal is not shown to have been accepted by the Management at any stage. After the receipt of the report, some evidence had become available which was relevant to the case. Nothing precluded the Management from putting that evidence to the petitioner and asking the Enquiry Officer to have a second look in the matter. This is precisely what was done. No rule has been pointed out to show that such a course of action is barred by law. Consequently, the plea is rejected.
8. Equally lacking in merit is the contention that the enquiry is vitiated on account of the bias of Mr. Malik. Admittedly, Mr. Malik was not employed with the respondent. Further, even the suggestion that the charge-sheet was served on the petitioner on the advice of Mr. R.S. Malik, advocate as made in paragraph 3-A of the petition has been specifically denied. Further , no such plea was even raised before the Tribunal. Even otherwise, Mr. Malik is not a party to these proceedings. Taking the totality of circumstances into consideration, there appears to be no basis for the contention raised by the learned counsel for the petitioner. It is consequently rejected,
9. Mr, Surya Kant then contended that the order of dismissal is vitiated as the mandatory provision of Section 33(2)(b) of the Act had not been complied with. He has heavily relied on the observation of S.C. Aggarwal, J (as his Lordship then was) in Dinesh Khare v Industrial Tribunal, Rajasthan (1982-II-LLJ-17).
10. A perusal of Section 33 shows that under Sub-section (1), the employer cannot alter the conditions of service or punish the employee in respect of any misconduct connected with the dispute pending before the Authority "save with the express permission in writing of the authority before which the proceeding is pending." Sub-section (2) on which the learned counsel has placed strong reliance provides as under;-
"33(2). During the pendency of any such proceeding in respect of any industrial dispute, the ployer may, in accordance with the standing orders applicable to workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman:-
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding for approval of the action taken by the employer is pending."
This provision covers the matters "not connected with the dispute" pending before an authority. It permits the employer to alter the conditions of service of the workman or to punish him for misconduct "not connected with the dispute." However, in the latter case where the employer proceeds to discharge or dismiss the employee, it makes it incumbent on the management to comply with two conditions. Firstly, the workman has to be paid wages for one month and secondly an application has to be made by the employee to the authority before which the proceeding is pending "for approval of the action taken by the employer." The provision affords a protection to the workman concerned during the course of an industrial dispute against harassment and victimization by the employer. It also aims at restricting the management from doing things without following the prescribed procedure so as to ensure that fresh disputes which may 'further exacerbate the already strained relation between the employer and the workman Mo not arise. The proviso to Section 33(2)(b) contains an express prohibition against the passing of an order of discharge or dismissal "unless the workman has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer." The provision is undoubtedly mandatory in character as held by the Rajasthan High Court in Dinesh Khare 's case (supra)
11. What is the consequence if the mandate of this provision is not followed? Does the violation of the provision ipso facto vitiate the order? Is the employee entitled to reinstatement straightway? Section 33A of the Act provides the answer. It delineates the consequences that ensue the breach of the provision. It enables an employee "aggrieved by such contravention to make a complaint in writing." The provision may be usefully reproduced. It reads as under:-
"33A Special provision for adjudication as to whether conditions of service, etc. changed during pendency of proceedings.
Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal, any employee aggrieved by such contravention, may make complaint in writing in the prescribed manner:-
a) to such conciliation officer or Board, and the conciliation officer or Board, shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute, &
b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly."
A perusal of the above provision shows that it provides an "instant remedy" to an employee aggrieved by the contravention of Section 33. While normally the workman has to seek a reference by the appropriate Government under Section 10 of the Act, by the promulgation of this provision, the necessity for seeking of such a reference has been obviated. The aggrieved workman has been given the right to make a complaint to the authority before which the dispute is pending. It is further clear that the contravention of the provision of Section 33 is a condition precedent before the appropriate authority, viz. the Arbitrator, Labour Court, Tribunal, or National Tribunal can take cognisance of the case and proceed to "adjudicate upon the complaint as if it were a dispute referred to or pending before it in accordance with the provisions of this Act..." While adjudicating upon the complaint, the appropriate authority has to follow the provisions of the Act. This would include even the provision of Section 11A. It thus follows that a finding that Section 33 has been violated does not mean that reinstatement has to be ordered. It only implies that the workman does not have to seek reference. He is entitled to make a complaint which has to be adjudicated upon like any other industrial dispute.
12. Thus, so far as the employee is concerned, he gets the right to file the complaint and the authority is required to adjudicate upon this complaint. It is only when it is found that the order of punishment is not justified that the concerned workman shall be entitled to reinstatement.
13. Does it mean that the employer suffers no penalty for violating the provision of law? No. Section 31 prescribes the consequence that the employer may have to suffer. It provides for the penal consequences that may confront the employer. He can be sentenced to undergo imprisonment which may extend to six months and/ or may be fined. These, however, are the only consequences. It is, thus, held that violation of provision of Section 33 entitles the workman to file a complaint and makes the employer liable to be punished. It, however, does not automatically entitle the employee to claim reinstatement.
14. In view of the above, the contention of Mr. Surya Kant that the Tribunal having found that there was contravention of Section 33(2)(b) of the Act while deciding Issue No. 2, it ought to have ordered the reinstatement of the workman cannot be sustained. This finding was a necessary pre-condition for enabling the Tribunal to take cognizance of the complaint filed by the petitioner. It still had to go into the merits of the order passed by the employer and determine "Whether the dismissal is unjustified on its merits?" This is precisely what has been done. The Tribunal had framed Issue No. 3 to determine this controversy and found against the petitioner. A clear finding of fact has been recorded on Issue No. 3. In the exercise of writ jurisdiction under Article 226 of the Constitution of India, there is no ground to interfere with this finding.
15. Even otherwise, the petitioner has been found guilty of tampering with the official record with the object of causing loss to the employer. It would be an abuse of the power under Article 226 of the Constitution if such an employee was foisted upon an unwilling employer. In the exercise of discretionary jurisdiction the Court should not be inclined to grant such a relief to petitioner.
16. In view of the above, there is no merit in this petition. It is dismissed. However, in the circumstances of the case, there will be no order as to costs.