Telangana High Court
G.M. Operations, Management Of Engine ... vs Industrial Tribunalii, Hyd And Anr on 16 October, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
&
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT APPEAL Nos.150 AND 577 OF 2014
COMMON JUDGMENT:(per Hon'ble Sri Justice Laxmi Narayana Alishetty) Since both the appeals arise out of common order dated 12.12.2013 passed in W.P.Nos.2800 of 2003 and 20276 of 2005, which were filed aggrieved by the order dated 30.03.2002 in I.D.No.179 of 2000, both the Appeals were heard together and disposed of by this common judgment.
2. W.A.No.150 of 2014 is filed by the appellant-employer assailing the order dated 12.12.2013 passed by the learned single Judge of this Court in W.P.No.2800 of 2003. W.A.No.577 of 2014 is filed by the appellant-workman assailing the order dated 12.12.2013 passed by the learned single Judge of this Court in W.P.No.20276 of 2005.
3. For convenience, the facts in Writ Appeal No.150 of 2014 are referred hereunder.
4. The 2nd respondent (hereinafter referred to as 'workman') was appointed in the appellant-company (hereinafter referred to 'employer') on casual basis from 02.06.1987 to 02.08.1987. Later, ASK,J & LNA,J W.A.NOs.150 & 577 of 2014 2 he was taken as trainee from 03.08.1987 to 03.08.1989; that he was put on probation for a period of one year and subsequently, the probation of the workman was declared. While so, a charge-sheet was issued to the workman alleging that he indulged in low production and was dismissed from service on 28.01.1993, however, later, the workman was reinstated as a fresh employee under Section 18(1) of the Industrial Disputes Act, 1947 (for short, 'Act, 1947') consequent upon the settlement arrived at between the employer and the workman. Subsequently, another charge- sheet was issued to the workman on 25.08.1994 on the ground that he was unauthorizedly absent from duties without intimation on various dates between 28.02.1994 and 24.08.1994. Consequently, a domestic enquiry was conducted against the workman and the workman was found guilty in the enquiry report dated 10.03.1995. Again, one more charge-sheet was issued to workman on 28.01.1995 alleging that he wilfully indulged in low production.
5. It is further averred that a common show-cause notice was issued to the workman on 07.08.1995 and the workman submitted ASK,J & LNA,J W.A.NOs.150 & 577 of 2014 3 his explanation on 22.08.1995; that not satisfied with the explanation offered by the workman, the disciplinary authority dismissed the workman from service vide order dated 04.11.1995; that at that time, I.D.No.103 of 1994 was pending before the Tribunal. The employer filed M.P.No.1 of 1996 under Section 33 (2)(b) of the Act, 1947 before the Tribunal and the Tribunal vide its order dated 10.12.1997, held that enquiry was proper and ultimately, M.P.No.1 of 1996 was allowed vide order dated 16.02.1998.
6. Aggrieved by the order dated 16.02.1998, the workman filed I.D.No.59 of 1998 under Section 2-A(2) of the Act, 1947 before the Labour Court-III, Hyderabad and the said I.D. was transferred to Labour Court-I, Hyderabad and was renumbered as I.D.No.435 of 2000 and it was again transferred to Industrial Tribunal-II, Hyderabad and was renumbered as I.D.No.179 of 2000. The Tribunal, vide award dated 30.03.2002, held that enquiry was conducted properly, however, came to conclusion that findings were perverse. Consequently, the Tribunal ordered ASK,J & LNA,J W.A.NOs.150 & 577 of 2014 4 reinstatement of the workman without back-wages, continuity of service and attendant benefits.
7. Aggrieved by the award dated 06.12.2001, the employer filed W.P.No.2800 of 2003 and the workman filed W.P.No.20276 of 2005. Learned single Judge vide order dated 12.12.2013 disposed of both the writ petitions, confirming the award passed by the Tribunal in I.D.No.179 of 2000 with the modification that reinstatement of the workman shall be with continuity of service and attendant benefits, however, without back-wages.
8. Heard Sri S.Ravindranath, learned counsel for the appellant and the learned Government Pleader for Labour appearing for respondent No.1 and Sri V.Narasimha Goud, learned counsel for respondent No.2 in W.A.No.150 of 2014; Sri V.Narsimha Goud, learned counsel for appellant and Sri S.Ravindranath learned counsel for the respondent in W.A.No.577 of 2014.
9. Learned counsel for the employer contended that once Industrial Tribunal passed order dated 16.02.1998 in M.P.No.1 of ASK,J & LNA,J W.A.NOs.150 & 577 of 2014 5 1996 that the enquiry is proper, I.D.No.179 of 2000 filed by the workman is barred by the principles of res judicata. Learned counsel further contended that the Industrial Tribunal did not properly appreciate the findings of the Enquiry Officer, whereby the Enquiry Officer held that the charges of unauthorized absence and low production were proved; that the Tribunal ought not to have ordered for reinstatement of the workman; that the Industrial Tribunal erred in applying Section 11-A of the Act, 1947 on sympathetic grounds; that the workman has indulged in low production and unauthorized absence regularly, therefore, the Tribunal ought not to have applied Section 11-A of the Act, 1947 and ordered reinstatement of workman and finally, contended that the learned single Judge was not justified in ordering continuity of service and attendant benefits despite misconduct on the part of the workman.
10. Per contra, learned counsel for workman contended that the Industrial Tribunal though held that enquiry was proper, it has categorically held that the findings of the Enquiry Officer is perverse; that though the Industrial Tribunal ordered for ASK,J & LNA,J W.A.NOs.150 & 577 of 2014 6 reinstatement of the workman, it committed error in not ordering continuity of service, attendant benefits and back-wages; that the learned single Judge having not interfered with the findings of the Industrial Tribunal that charges levelled against the workman were not proved, ought to have ordered for back-wages along with continuity of service and attendant benefits, however, learned single Judge has only ordered continuity of service and attendant benefits without back-wages. Learned counsel for workmen finally contended that order passed by the learned single Judge is liable to be interfered and workman shall be given benefit of full back-wages by modifying the order dated 12.12.2013 passed by the learned single Judge.
11. Perusal of the record would show that the workman was dismissed from service on 28.01.1993 on the ground of low production and was reinstated consequent to settlement arrived at between the employer and the workman under Section 18(1) of the Act, 1947. The workman was again charge sheeted on 25.08.1994 for unauthorized absence and one more charge sheet was issued on 28.01.1995 for wilfully indulging in low production ASK,J & LNA,J W.A.NOs.150 & 577 of 2014 7 and the workman was found guilty in the enquiry on both grounds vide enquiry report dated 10.03.1995 and 30.06.1995 respectively. Show-cause notice was issued on 07.08.1995, to which, the workman offered explanation on 22.08.1995. However, the disciplinary authority, not satisfied with the explanation offered by the workman, dismissed the workman from service vide order dated 04.11.1995.
12. Consequently, the employer filed M.P.No.1 of 1996 before the Tribunal and the Tribunal vide order dated 10.12.1997 held that the enquiry was proper and thereafter, allowed the M.P.No.1 of 1996 vide order dated 16.02.1998. Aggrieved thereby, the workman filed I.D.No.59 of 1998 under Section 2-A(2) of the Act, 1947, which was subsequently renumbered as I.D.No.179 of 2000. In I.D.No.179 of 2000, the Tribunal held that enquiry conducted by the employer was proper, however, came to conclusion that the findings were perverse. The Tribunal observed that misconduct alleged against the workman was not established and therefore, findings of the enquiry officer were set aside. Consequently, the Tribunal directed the employer to reinstate the ASK,J & LNA,J W.A.NOs.150 & 577 of 2014 8 workman without back-wages, continuity of service and attendant benefits.
13. The main contention raised by the learned counsel for appellant-employer is that in view of the order dated 16.02.1998 passed in M.P.No.1 of 1996 on merits that enquiry conducted by the employer was proper, the claim of the workman in I.D.No.179 of 2000 is not maintainable and is hit by the principle of res judicata.
14. On the other hand, learned counsel for workman had contended that findings of the Tribunal in M.P.No.1 of 1996 that enquiry was proper is only a prima facie opinion and is not an order/decision on merits of the enquiry. Therefore, the same does not operate as res judicata, more so, when the workman raised dispute under Section 2-A(2) of the Act, 1947 questioning his dismissal from service.
15. Learned counsel for the workman placed reliance on the following decisions:
ASK,J & LNA,J W.A.NOs.150 & 577 of 2014 9
i) M/s. G.Mekenzie and Co.Ltd. v. Its Workmen and others 1;
ii) Management of Bharat Heavy Electricals Ltd., Hyderabad v. Labour Court-II, Hyderabad and another 2;
iii) Hindusthan Aeronautics Ltd., Hyderabad v. Additional Industrial Tribunal-cum-Labour Court, Hyderabad and another 3;
iv) A.L.Karla v. The Project and Equipment Corporation of India Ltd., 4;
v) Pradeep v. Manganese Ore (India) Limited and others 5
vi) Depot Manager, APSRTC, Guntur District and another v. Ch.Suresh Babu and another 6;
16. In M/s.G.Mekenzie & Co. (1 supra), the Hon'ble Apex Court held that the nature and scope of proceedings under Section 33 shows that removing or refusing to remove the ban on punishment or dismissal of workmen does not bar raising of an industrial dispute when as a result of the permission of the Industrial Tribunal, the employer dismisses or punishes the workmen. It is further held that as the purpose of Section 33 of the Act is merely to give or withhold permission and not to 1 AIR 1959 SC 389 2 2005 (3) ALD 383 3 2005 (4) ALD 846 4 AIR 1984 SC 1361 5 (2022) 3 SCC 683 6 2019 (2) ALD 264 (DB) ASK,J & LNA,J W.A.NOs.150 & 577 of 2014 10 adjudicate upon an industrial dispute any finding under Section 33 would not operate as res judicata and bar raising of an industrial dispute. In Managgement of Bharat Heavy Electricals Ltd., ( 2 supra), Hindusthan Aeronautics Ltd., (3 supra), and A.L.Karla (4 supra), similar view has been taken.
17. In view of ratio laid down by the Hon'ble Apex Court , the principal contention raised by the appellant-employer that industrial dispute raised by the workman was hit by principle of res judicata is not tenable and is accordingly, rejected.
18. The learned counsel for the appellant-workman in W.A.No.577 of 2014 contended that the workman was entitled to back-wages and relied upon the judgment of the Hon'ble Apex Court in Pradeep (5 supra) and the judgment of the Division Bench of erstwhile composite High Court of Andhra Pradesh in Ch.Suresh Babu (6 supra).
19. In Pradeep (5 supra), the Hon'ble Apex Court held as under:
"12. It is, undoubtedly, true when the question arises as to whether the back wages is to be given and as to what is to be ASK,J & LNA,J W.A.NOs.150 & 577 of 2014 11 the extent of back wages, these are matters which will depend on the facts of the case as noted in Deepali Gundu Surwase [Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014) 2 SCC (L&S) 184] . In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal/malafide termination. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case. The nature of the charges, the exact reason for the termination as evaluated and, of course, the question as to whether the employee was gainfully employed would be matters which will enter into the consideration by the Court.
...
14. We have also, however, noticed that there was hardly any worthwhile reason for the respondent to terminate the services. The impugned order [Pradeep v. Manganese Ore (India) Ltd., 2017 SCC OnLine Bom 10125] itself shows that there was no basis for termination of the services of the appellant. When the appellant was qualified and particularly, when the appellant also has a case that all this was done for the reason that he had taken up certain issues relating to the manner in which the affairs of the respondent was being run, we would think that the High Court was in error in not making appropriate order relating to back wages."
ASK,J & LNA,J W.A.NOs.150 & 577 of 2014 12
20. In Ch.Suresh Babu (6 supra), the Division Bench of erstwhile composite High Court of Andhra Pradesh has taken a similar view.
21. The facts and circumstances of the above cases and the facts and circumstances of the present case are different and therefore, we are afraid that same cannot be applied to the cases on hand.
22. It is appropriate to refer to the observation recorded by the learned single Judge at paragraph-19 of the common order dated 12.12.2013. It reads as under:
"19. ... where the employee was in fact dismissed on one occasion and was reinstated through a settlement under Section 18(1) of the Act and where the employee could not give proper production, albeit he is not guilty of low production since there was no settlement between the employee and the employer, the order of the Tribunal ordering reinstatement without back-wages is justified. I consider that it would be appropriate to order reinstatement with continuity of service and attendant benefits where the misconduct has not been established."
23. In considered opinion of this Court, the observations and reasons recorded by the learned single Judge are proper and do ASK,J & LNA,J W.A.NOs.150 & 577 of 2014 13 not warrant interference by this Court. Therefore, this Court is not inclined to interfere with the common order dated 12.12.2013 passed by the learned single Judge in W.P.Nos.2800 of 2003 and 20276 of 2005.
24. In view of above discussion, facts and circumstances, the Writ Appeals fail and are accordingly dismissed. There shall be no order as to costs.
Pending miscellaneous applications if any shall stand closed.
___________________________________ ABHINAND KUMAR SHAVILI, J ___________________________________ LAXMI NARAYANA ALISHETTY, J Date:16.10.2024 Kkm/dr