Punjab-Haryana High Court
Thomson Press (India) Ltd. vs Presiding Officer Industrial ... on 3 September, 1996
Equivalent citations: (1997)115PLR25
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT G.S. Singhvi, J.
1. Three questions of law arise in these writ petitions filed by the employer as well as the employee against the award dated 8.11.1994 passed by the Industrial Tribunal-cum-Labour Court-I, Faridabad. First of these questions is whether it is imperative for the State Government to hear the employer before making reference of an industrial dispute after it had refused to make reference of the dispute on an earlier occasion ? Second question is whether the Industrial Tribunal-cum-Labour Court had the jurisdiction to go into the legality of the dismissal of the workman even after recording the finding that the reference made by the Government is bad in law ? Third question which calls for adjudication by this Court is whether the Industrial Tribunal could award compensation to the workman even after holding that the decision of the employer to dismiss the workman is proper ?
2. In order to decide "the aforementioned questions, it is necessary to give a factual background of the case. The workman, Kanhiya Singh, joined the employment of M/s Thomson Press (India) Limited Faridabad on 18.3.1968. On the date of removal from service i.e. 2.12.1985, he was working as Senior Electrician. A domestic enquiry was initiated against the workman on the basis of charge-sheet dated 3.7.1985 on the allegations that he had left the place of work at 2.45 p.m. or 27.6.1985 without permission and when he returned after 15 minutes, the workman used abusive language against an officer of the Company, Shri L.D. Kaushik, and tried to hit him with a hammer. The workman denied the allegations levelled against him. The employer held enquiry and dismissed the workman from service vide order dated 2.12.1985. Aggrieved by his dismissal, the workman submitted a demand notice for raising a dispute. The parties failed to arrive at a settlement and during conciliation proceedings and after considering the failure report the Government of Haryana declined to make reference. However, on a representation made by the workman, the Government re-considered the matter and vide its order dated 13.4.1987 referred the dispute to the Industrial Tribunal-cum-Labour Court I, Faridabad for adjudication.
3. On the basis of the pleadings of the parties, the Industrial Tribunal framed the following three issues :-
(i) Whether the reference is bad in law as alleged ?
(ii) Whether the enquiry is fair and proper ?
(iii) Whether the dismissal of the workman is justified and in order, if not, to what relief he is entitled ?
4. While dealing with the first issue the Tribunal took notice of the facts brought on record and held that the Government had acted illegally in making reference of the dispute without giving notice and opportunity of hearing to the employer, after it had declined to do so on an earlier occasion. The Tribunal recorded this conclusion on the basis of a judgment of this Court in The Tribune Trust v. State of Punjab, 1992(2) SLR 264. Thereafter, it examined the various objections raised by the workman to the fairness of the domestic enquiry and rejected all of them and recorded a conclusion that the enquiry conducted by the employer was fair and proper and the principles of natural justice were not violated. It also held that the Tribunal cannot sit in judgment over the decision of the management in view of the findings recorded by Enquiry Officer. Notwithstanding this, the Tribunal directed the employer to pay lump-sum amount of Rs. 50,000/- by observing that the workman had served the employer for more than 17 years.
5. Both the learned counsel criticised the impugned award, but for different reasons. Shri Lamba assailed the award by arguing that after having declared the reference to be bad in law, the Tribunal had no jurisdiction to award compensation to the workman, particularly, when it found the domestic enquiry to be fair and proper. Shri Lamba argued that the Industrial Tribunal had no jurisdiction to award compensation to the workman after holding that the domestic enquiry did not suffer from any infirmity. In support of the finding recorded by the Tribunal on issue No. 1, Shri Lamba relied on the following decisions :-
(i) Indian Telephone Industries Ltd. v. State of Karnataka, 1978 Lab. I.C. 1779.
(ii) Management of Theatre Sanjaya v. The State and Ors., 1984(2) LLJ 400.
(iii) M/s Escorts Ltd. v. Industrial Tribunal, Haryana, 1983 Lab. I.C. 223; and
(iv) The Tribune Trust v. State of Punjab, 1992(2) SLR 264.
6. Ms. Abha Rathore, learned counsel for the workman argued that the Tribunal has gravely erred in holding that the reference made by the Government on 13.4.1987 was illegal because of non-issuance of notice to the employer. Ms. Rathore submitted that power exercisable by the Government under Section 10 read with Section 12 of the Industrial Disputes Act, 1947 is administrative in nature and no lis is involved between the parties when the Government exercise its power to make or not to make reference and, therefore, the concept of natural justice cannot be read as implicit in the exercise of that power. Learned counsel pointed out that language of Section 10(1) is wide and pervasive, inasmuch as, it empowers the Government to make a reference even without any demand by the workman and, therefore, the rule of audi alteram partem cannot be applied to such cases. She further argued that the Industrial Tribunal has seriously erred in deciding the issues of fairness of domestic enquiry and the justness of the punishment imposed by the employer. Submission of the learned counsel is that the Tribunal completely misdirected itself by ignoring the fact that the workman did not know the language in which the enquiry proceedings were held and the fact that he was denied opportunity of defending himself at all stages of the proceedings. Another limb of her argument is that the Tribunal has failed to exercise its jurisdiction under Section 11-A as interpreted by the Supreme Court in Workmen of Firestone Tyre & Rubber Co. of India Pvt. Ltd. v. Management, AIR 1973 SC 1227.
7. In our opinion, the view taken by the Tribunal on the issue of maintainability of the reference cannot per se be regarded as erroneous because the Tribunal has done nothing more than rely upon a decision of this Court. It appears to us that in more than one case, this Court has held that the principles of natural justice are attracted in cases where the Government seeks to make reference of the dispute which it had declined to do on an earlier occasion. In M/s Escorts Limited v. Industrial Tribunal, Haryana (supra), a Division Bench of this court considered challenge made by the employer to the decision of the Government conveyed vide letter dated 25th July, 1978 whereby it referred the dispute for adjudication by the Industrial Tribunal, Faridabad on the ground that by an earlier communication dated 24th February, 1976, reference had been declined. The Division Bench referred to the decision of the Apex Court in Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, Haryana, AIR 1979 SC 170 and distinguished it by observing that the Apex Court did not consider the issue relating to the violation of the principles of natural justice. Thereafter, the Division Bench referred to the provisions of Sections 10 and 12 and held that order of reference visits the employer with civil consequences and, therefore, it is imperative for the Government to give notice to the employer before a reference is made by the Government. The Division Bench further held that reasons must be recorded by the Government if it seeks to make a reference of a dispute after the same was declined on an earlier occasion. The Division Bench applied the concept of natural justice as enunciated in Smt. Maneka Gandhi v. Union of India and Anr., AIR 1978 SC 597 and Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors., AIR 1978 SC 851. It also relied on some decisions of Madras, Karnataka and Calcutta High Courts to support its views. This decision of the Division Bench has been followed in The Tribune Trust v. State of Punjab (supra) and some other cases.
8. In Civil Writ Petition No. 594 of 1996, Punjab Anand Lamp Employees Union, Mohali v. M/s Punjab Anand Lamp Industry Ltd., Mohali and Anr., a another Division bench of this Court considered the scope of Sections 10 and 12 and after an exhaustive discussion on the subject and reference to the decisions of the Apex Court in State of Bombay v. K.P. Krishnan and Ors., AIR 1960 SC 1223; Bombay Union of Journalists and Ors. v. State of Bombay and Anr., AIR 1964 SC 1617; The M.P. Irrigation Karamchari Sangh v. State of M.P. and Anr., AIR 1985 SC 860; Ram Avtar Sharma and Ors. v. State of Haryana and Anr., AIR 1985 SC 915; Shambu Nath Goyal v. Bank of Baroda, 1978 (1) LLJ 484 it held :-
"Section 10 of the Act says that where the appropriate Government is of the opinion that an industrial dispute exists or is apprehended, it may refer the dispute at any time by issuing an order in writing. Such reference may be made to a Board for settlement thereof. It may also refer any matter connected or related to a dispute to a Court of Inquiry or refer the dispute or any matter appearing to be connected with the dispute to a Labour Court for adjudication if it pertains to any matter specified in Second Schedule or the Tribunal if it relates to any matter specified in Second Schedule or the Third Schedule. Section 12(1) makes it obligatory for the conciliation officer to hold conciliation proceedings in the prescribed manner where any industrial dispute exists or is apprehended. Section 12(2) requires the conciliation officer to investigate the dispute and all matters affecting the merits and right settlement thereof and shall make all attempts to bring about a fair and amicable settlement of the dispute. If the settlement of the dispute or any of the matters in dispute is arrived at in the course of conciliation proceedings, a report to that effect is required to be sent to the appropriate Government together with a memorandum of settlement signed by the parties to the dispute. If the parties fail to arrive at a settlement, the conciliation officer should send a full report of the steps taken by him for ascertaining the facts and circumstances relating to the dispute and efforts made by him for bringing about the settlement and the circumstances and reasons on account of which, in his opinion, the settlement could not be arrived at. The appropriate Government may thereafter make a reference if it is satisfied that there is a case for reference. Where the Government does not make a reference, it is obliged to record and communicate to the parties concerned the reasons for not making the reference. Section 11-A relates to the powers of the Labour Courts/Industrial Tribunals and National Tribunal to give appropriate relief in case of the discharge or dismissal of a workman. However, we shall deal with this section a little later. Here we shall deal with the ambit and scope of the power of the Government to refer or not to refer the industrial dispute. In this context, it is necessary to bear in mind that the power conferred upon the Government to make reference is not confined to an industrial dispute which has already come into existence but the Government is also possessed with the power to make a reference, if any industrial dispute is apprehended. Moreover, the Government can exercise this power at any time. While exercising the power to make or not to make a reference of an industrial dispute which exists or which is apprehended, the Government has to take into consideration the failure report of the conciliation officer submitted to it under Section 12(4) and it is the duty of the Government to record reasons and communicate the same to the parties for not making a reference. These two Sections nowhere indicate that the Government is required to exercise power of making or not making a reference in a judicial or quasi judicial manner. Similarly there is no requirement of hearing the parties before Taking a decision to refer or not to refer a dispute."
9. On the basis of observations made in the case of Punjab Anand Lamp Employees Union, Mohali (supra), it can be said that the statute requires recording of reasons and communication thereof by the Government only where the Government refuses to make reference and the principles of natural justice have been engrafted in the scheme of Sections 10 and 12 to a very limited extent.
10. During the course of hearing, we entertained serious reservation about the correctness of the view taken by the Division Bench in M/s Escorts Limited v. Industrial Tribunal, Haryana (supra) and other similar decisions of this Court and in view of the apparent divergence of opinion between two Division Benches, we may have referred the matter of the apparent divergence of opinion between two Division Benches, we may have referred the matter to a larger bench but in view of the authoritative decision of the Apex Court in Sultan Singh v. State of Haryana, 15 1996(2) SCC 66, whereby the decision in M/s Escorts Limited v. Industrial Tribunal, Haryana (supra) has been declared as not laying down correct law, it is not necessary to make such reference. Civil Writ Petition No. 2885 of 1984, Sultan Singh v. State of Haryana was dismissed by a Division Bench of this Court by placing reliance on the decision of M/s Escorts Limited v. Industrial Tribunal, Haryana (supra). In appeal their Lordships of the Supreme Court disapproved the ratio of the decision in M/s Escorts Limited v. Industrial Tribunal, Haryana (supra) with the following observations:-
4. "A conjoint reading, therefore, would yield to the conclusion that on making an application for reference, it would be open to the State Government to form an opinion whether industrial dispute exists or is apprehended and then either to make a reference to the appropriate authorities or refuse to make the reference. Only on rejection thereof, the order needs to be communicated to the applicant. Nonetheless the order is only an administrative order and not a quasi-judicial order. When it rejects, it records reasons as indicated in sub-section (5) of Section 12 of the Act. The appropriate Government is entitled to go into the question whether an industrial dispute exists or is apprehended. It would be only a subjective satisfaction on the basis of the material on record. Being an administrative order no lis is involved. Thereby there is no need to issue any notice to the employer nor to hear the employer before making a reference or refusing to make a reference. Sub-section (5) of Section 12 of the Act does not enjoin the appropriate Government to record reasons for making reference under Section 10(1). It enjoins to record reasons only when it refuses to make a reference.
5. The need for hearing is obviated, if it is considered on second occasion as even then if it makes reference, it does not cease to be an administrative order and so is not incumbent upon the State Government to record reasons therein. Therefore, it is not necessary to issues notice to the employer nor to consider his objections nor to hear him before making a reference. Accordingly, we are of the view that the High Court was wholly wrong in its conclusion that before making reference on second application, it was incumbent upon the State Government to give notice to the employer and to give an opportunity to the employer and record reasons for making reference. The previous decision of that Court relied on in the case at hand was wrongly decided."
11. From the last portion of para 5 of the judgment of the Supreme Court, it is more than clear that their Lordships have unequivocally disapproved the view taken by the Division Bench that employer is required to be heard when the Government makes reference of the dispute after it had rejected the same on an earlier occasion. In the face of the latest pronouncement of the Supreme Court, the judgment of the Division Bench in M/s Escorts Limited v. Industrial Tribunal, Haryana (supra) and the decisions of the High Courts of Madras, Karnataka and Calcutta, which have been referred to in the judgment of this Court must be treated as overruled. It is indeed unfortunate that neither of the learned counsel thought it proper to invite Court's attention to the decision in Sultan Singh's case (supra) and the learned counsel appearing for the employer sought a judgment from this Court on the basis of an overruled decision.
12. Coming to the second and third issues, we must express our grave concern over the manner in which the learned Presiding Officer dealt with the matter. After having held that the reference made by the Government was bad in law in view of the judgment in The Tribune Trust v. State of Punjab (supra) the Industrial Tribunal had no jurisdiction to enter into the merits of the controversy raised by the parties. In our opinion, the Tribunal should have plainly declined to decide the controversy on merits after it found that the reference was bad in the eye of law. Instead of adopting this straight course, the Tribunal decided the mater as if it wanted to oblige both the sides. In the first place, it held that the domestic enquiry was fair and proper and, thereafter, it proceeded to award compensation amounting to Rs. 50,000/- to the workman. We do not want to express any final opinion on the arguments of Ms. Rathore on the issue of fairness of the domestic enquiry because, in our opinion, the Tribunal committed a serious jurisdictional error in not applying its mind to the record produced before it in the context of the provisions of Section 11-A. The scope of Section 11-A has been considered and the guiding principles have been laid down by the apex Court in Workmen of M/s Firestone Tyre and Rubber Company v. The Management (supra). This Court has also dealt with this provision in a number of cases including the recent decision in Municipal Corporation, Amritsar v. Presiding Officer, Labour Court, Amritsar and Anr., 1995(4) RSJ 673. In the instant case the Industrial Tribunal has failed to consider the evidence produced during the domestic enquiry in order to find out whether the allegations levelled against the workman have been correctly held as proved. It has also failed to apply its mind to the issue of justness of punishment awarded by the employer. Moreover, the Tribunal has completely ignored the ratio of the decisions of the Supreme Court in M/s Hind Construction and Engineering Co. Ltd. v. Their Workmen, AIR 1965 SC 917; Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha and Ors., AIR 1980 SC 1896; Jaswant Singh v. Pepsu Road Transport Corporation Ltd., AIR 1984 SC 355; Rama Kant Misra v. State of U.P. and Ors., AIR 1982 SC 1552; Management of Hindustan Machine Tools v. Mohammad Usman, AIR 1984 SC 321; Ved Prakash v. M/s Delton Cables India (Private) Ltd., AIR 1984 SC 914; Jitender Singh Rathor v. Baidyanath Ayurved Bhawan Ltd., AIR 1984 SC 976 and Palghat BPL & PSP Thozhilali Union v. BPL India Limited and Anr., 1995(6) SLR 22. This failure of the Tribunal to examine the different aspects of the case in the light of Section 11-A has resulted in miscarriage of justice.
13. Another serious error in the impugned award is that after holding the action of the employer to be justified, the Tribunal has awarded a sum of Rs. 50,000/- to the workman. If at all the Tribunal's finding on the issues of fairness of domestic enquiry etc held to be correct, then no power was vested with the Tribunal to award compensation to the workman. To us, it appears that the learned Presiding Officer did not apply his judicial mind to the case and passed the impugned award in a most arbitrary manner and we have no option but to set it aside with a direction that the matter be decided afresh after giving opportunity of hearing to both the parties.
14. At one point, we had thought it appropriate to settle the matter at this very stage and we, therefore, called upon the learned counsel for the employer to find out whether the award of compensation to the workman could be a proper substitute in the extreme penalty of dismissal awarded by the management. However, after seeking instructions from his client, learned counsel stated that the management is not inclined to bring a close to the dispute.
15. In view of the above discussion, we hold that the award passed by the Industrial Tribunal-cum-Labour Court-I, Faridabad suffers from an error of law. Accordingly, we allow the writ petitions and set aside the award. The case is remanded back to the Industrial Tribunal for fresh adjudication in accordance with law after giving opportunity of producing evidence to both the parties and after hearing them. Both the parties are directed to appear before the Tribunal on 1.10.1996. The Tribunal shall decide the dispute afresh within a period of six months. It is, however, made clear that the employer shall not recover the amount which has already been paid to the workman in terms of the order passed by this Court on 27th November, 1995. The Tribunal shall take into consideration the amount so paid to the workman while deciding the case afresh.