Jharkhand High Court
M/S. Tata Steel Processing And ... vs Kripa Shanker Tiwary on 14 June, 2021
Author: S.N. Pathak
Bench: S. N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No. 3152 of 2020
M/s. Tata Steel Processing and Distribution Limited, a Company registered under
the provisions of Indian Companies Act having its Works at Bara Baridih,
Jamshedpur, East Singhbhum through its General Manager (H.R.) Sri Shekhar
Kumar Jha, S/o Sri Nawneshwar Jha, R/o 4/Old T.C. /Road No.1, Kadma,
Jamshedpur, East Singhbhum
... Petitioner
VERSUS
Kripa Shanker Tiwary, S/o Ram Prasad Tiwary, R/o 25 New Development Area,
Golmuri, Jamshedpur, East Singhbhum.
... Respondent
With
W.P. (L) No.1154 of 2019
Kripa Shanker Tiwary, S/o Ram Prasad Tiwary, R/o 25 New Development Area,
Golmuri, Jamshedpur, East Singhbhum. ... Petitioner
VERSUS
M/s. Tata Steel Processing and Distribution Limited, through its General Manager
(H.R.) Sri Shekhar Jha, Agrico, Jamshedpur, East Singhbhum
... Respondent
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
(Through Video Conferencing)
In W.P. (L) No. 3152 of 2020
For Petitioner : Mr. V.P. Singh, Sr. Advocate
Mr. Shanker Lal Agarwal, Advocate
Mr. Abhijeet Kr. Singh, Advocate
For the Respondent : Mr. Vishal Kumar, Advocate
In W.P. (L) No. 1154 of 2019
For Petitioner : Mr. Vishal Kumar, Advocate
For the Respondent : Mr. V.P. Singh, Sr. Advocate
Mr. Shanker Lal Agarwal, Advocate
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CAV on 02.02.2021 Pronounced on 14.06.2021 Dr. S. N. Pathak, J. Since both the writ petitions are arising out of same impugned
Award dated 20.08.2018 passed in Reference Case No.01/2013, these are taken up together and disposed of by this common order. Prayer in W.P. (L) No. 3152 of 2020
2. The petitioner- Management has approached this Court with a prayer for quashing the impugned Award dated 20.08.2018 passed in Reference Case. No. 01/2013 (Annexure-13) by the Presiding Officer, Labour Court, Jamshedpur, whereby and whereunder, he has been pleased to set aside the order of dismissal and consequently, petitioner-Management Punit/-
2was directed to reinstate the workman without back wages. Further, prayer has been made for quashing of order dated 24.03.2017 passed in Reference Case No.01/2013, by which the petitioner-Management was given liberty to raise the issue while assailing the interim order dated 24.03.2017 in writ petition being W.P. (L) No.3043 of 2017 vide order dated 11.04.2019. Prayer in W.P.(L) No.1154 of 2019
3. The petitioner, who is the workman, has approached this Court with a prayer in the nature of certiorari to modify the impugned Award dated 20.08.2018 passed in Reference Case No. 01/2013 to the extent that reinstatement of workman be made with full back wages along with interest and other benefits. Further, prayer has been made for a direction upon the respondents to reinstate the workman/petitioner to his original place of working at Jamshedpur.
4. The factual matrix as has been narrated in W.P. (L) No. 3152 of 2020 is that the respondent-workman was employee of the petitioner- Management having P.No.0871 and at the relevant time he was employed as Junior Associate. On 1st January, 2012, the packets of sweets were being distributed among the employees of the Management as the Company had touched a new height in terms of production, but the workman-respondent along with one Ranjit Singh instigated the co-employees not to take packets as quality of sweets were not good and asked them to return the same. Pursuant to which, other employees did not collect the packets. Thereafter, the distribution of packets were stalled. After an hour, the respondent- workman along with his colleagues arranged pastries from outside and distributed the same among the employees. It is further the case of the petitioner-Management that when this act of the workman-respondent came to the notice of the petitioner-management, a charge sheet was issued to workman on 12.01.2012 and was asked to submit an explanation within 72 hours. Pursuant thereto, the workman has submitted his explanation to the General Manager (Operation and Sales) on 16.01.2012, and stated that concocted story has been made and the allegations levelled against him are false. However, the reply of the petitioner was not accepted and as such, Management had decided to held a domestic enquiry in relation to the charges levelled against the workman and one Mr. A.N. Sinha (Advocate) Punit/-
3was appointed as Enquiry Officer. It is further the case of the petitioner that Enquiry Officer held enquiry on 20.03.2012 and in that enquiry one Mr. S. Mazumdar, representative of Management and workman were present. Thereafter, enquiry was concluded and Enquiry Officer on 18.05.2012 submitted its report to the General Manager (Operation & Sales) wherein, workman was held guilty of the charges as contained in Ext. M. (Annexre-
5). Accordingly, the workman was dismissed from service by the petitioner- management vide order dated 03.09.2012. Thereafter, the workman- respondent raised the dispute before the Competent Authority and the same was referred to Labour Court, Jamshedpur relating to dismissal of the workman with the following terms:
"(i) Whether, dismissal from service of Sri Kripa Shankar Tiwari, Ex. P. No.0871, Workman, M/s Tata Steel Processing and Distributing Limited, Bara, Agrico, Jamshedpur is justified? If not, what relief he is entitled to ?"
Upon receipt of the same, the learned Labour Court registered the case as Ref. No. 01 of 2013 and issued notices upon the respective parties to submit their written statement, rejoinder, etc. Upon receipt of the notice, petitioner-Management appeared before the learned Labour Court and filed rejoinder.
5. The learned Labour Court, after hearing the parties at length and after perusing the documents and evidences brought on record, came to the conclusion vide order dated 24.03.2017 that Management had not conducted domestic enquiry fairly and principles of natural justice has not been followed and findings of Enquiry officer are perverse and Management was directed to lead its evidence on merit. Against the said order, the Management approached this Court by filing a writ petition being W.P.(L) No. 3043 of 2017, while the said case was pending before this Court, learned Labour Court vide Award dated 20.08.2018 disposed of the said Reference in favour of the workman with a direction to reinstate the workman without backwages and the order of dismissal was set aside. Aggrieved by the same, the petitioner-Management has been constrained to knock the door of this Court, challenging the Award dated, 20.08.2018 as well as order dated 24.03.2017, whereas the workman has also approached this Court with a prayer to modify the Award dated Punit/-
420.08.2018 to the extent that the reinstatement of workman be made with full backwages along with interest and other benefits.
6. Mr. Vishal Kumar, learned counsel appearing for the workman submits that the dismissal of the workman was illegal and erroneously the Tribunal has refused to grant back wages, which is not sustainable in the eyes of law. The Domestic Enquiry conducted by the Management was unfair. As per Clause 26 of the Standing Order, only an Officer of the Management Company could be appointed as an Enquiry Officer, but Management has appointed an Advocate as an Enquiry Officer for conducting Domestic Enquiry, which is violation of its own Order/Rule. The Standing Order is meant for its employees as well as Employer and as such, the Management cannot appoint an Advocate as an Enquiry Officer. He further submitted that the Enquiry Officer commenced its enquiry on 03.02.2012 and thereafter, due to non appearance of workman, adjourned the proceeding for 15.02.2012 but no ordersheet of proceeding of 15.02.2012 is available in the enquiry proceeding and there is nothing in Exhibit M/A, which could suggest as to why the enquiry was not conducted on that day. On 13.03.2012 at the request of the workman, the proceeding was adjourned to 20.03.2012 but instead of 20.03.2012, Enquiry Officer conducted the proceeding on 19.03.2012 i.e. one day prior to the date fixed and as such, there is gross illegality in the enquiry proceeding. Learned counsel submitted that during the period in question i.e. from the date of dismissal till date of reinstatement, petitioner was not gainfully employed. The Tribunal has completely lost sight of this vital fact and has surprisingly denied backwages despite the settled law that upon setting aside of dismissal order, back wages are normally awarded. Learned counsel further submitted that a grave injustice has occurred while refusing to grant back wages without assigning any reason. To buttress his arguments, learned counsel placed heavy reliance on the following Judgments:
i. Rajasthan State Road Transport Corporation, Jaipur Vs. Phool chand (dead) through legal Representatives, reported in (2018) 18 SCC 299;
ii. Deepali gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & Ors. reported in (2013) 10 SCC 324;
iii. Chief Regional Manager, United India Insurance Company Ltd. Vs. Siraj Uddin Khan passed in Civil Appeal No.5390 of 2019 (arising out of SLP (C) No. 174 of 2019.
iv. Atique Khan Vs. Employers in relation to the Management of Punit/-
5Jamadoba Colliery of M/s. Tata Steel Ltd. in W.P.(L) No.4005 of 2014.
7. Mr. V.P. Singh, learned Sr. counsel assisted by Mr. Shankar Lal Agarwal with Mr. Abhijeet Kr. Singh, learned counsel appeared for the Management and submitted that the order dated 24.03.2017 passed by the learned Labour Court whereby the domestic enquiry was held to be unfair is illegal and contrary to the principles of law. He further submitted that the finding of learned Labour Court that an Advocate cannot be made an Eqnuiry Officer is wholly incorrect. The Standing Order 26 clearly states about the procedure for dealing with cases of misconduct. Learned Sr. counsel by drawing the attention of Court towards Standing Order 26, submitted that from perusal of the said Standing Order 26, it is crystal clear that Company can appoint an officer or officers appointed for the purpose. This clauses does not put a bar on appointing an advocate for conducting an enquiry and there is no such provision in the Works Standing Order that appointing an Advocate as Enquiry Officer is illegal. He further submitted that no prejudice has been shown by the workman for not mentioning the date of the proceeding when the matter was not taken due to absence of the workman. The workman was given opportunity to lead the evidence and to cross examine the witnesses brought by the Management. The workman in his written statement has nowhere raised any grievances against the conduct of 'Domestice Enquiry' by an Advocate or conduct of the proceeding on a date which was not fixed as stated by the learned Labour Court. The workman having participated in the 'Domestic Enquiry' without any protest or objection against the Enquiry Officer or the manner of conducting the Proceeding after its decision against him, cannot be allowed to raise objection. He further argued that learned Labour Court has examined the findings of the Enquiry Officer as criminal trial considering that the witnesses examined were not eye witnesses, whereas the management has produced evidence on the incident. On the aforesaid grounds, learned counsel submitted that order dated 24.03.2017 is bad in law and it may be set aside.
8. Learned Sr. counsel for the Management further submitted that the impugned Award dated 20.08.2018 passed by the learned Labour Court is also erroneous and the same is against the principles of law and evidence adduced by the Management. It is settled principle of law that there should not Punit/-
6be difference in the pleading and the evidence. From perusal of written statement of the workman and his evidence, it appears that he has tried to improve his case by alleging that principles of natural justice were not followed which however, were not mentioned in the written statement and as such, learned Labour Court had travelled beyond the pleadings. The impugned Award of reinstatement of the workman in service is bad in law as the workman has been found guilty of the charges. The learned Labour Court has failed to consider that the petitioner is a reputed company and reinstatement of the workman would encourage him to commit similar misconduct again and again. It is settled principles of law that awarding punishment is a managerial function and unless the punishment is excessive or malafide or malicious or arbitrary, the Court restrains itself from interfering into the matter. As the employee has nowhere pleaded that he was not gainfully employed neither any evidence has been brought on record, the Tribunal has rightly denied the backwages. In absence of any pleading regarding gainful employment, no Court could entertained the reasoning of the workman for granting backwages.
9. To buttress his arguments, learned Sr. counsel placed heavy reliance on the following Judgments:
(i) National Seeds Corporation Ltd. Vs. K.V. Rama Reddy, reported in (2006) 11 SCC 645;
(ii) The State of Haryana Vs. Rattan Singh, reported in (1977) 2 SCC 491.
10. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that the learned Tribunal after hearing both the parties vide its order dated 24.03.2017 held that the Management had not conducted domestic enquiry fairly and after following principles of natural justice and findings of the Enquiry Officer are perverse. Aggrieved thereto, the Management approached this Court by filing a writ petition being W.P.(L) No.3043 of 2017, challenging the order dated 24.03.2017. However, during the pendency of the aforesaid writ petition the final Award dated 20.08.2018 was passed by the learned Tribunal, whereby the order of dismissal was modified, treating it to be disproportionate to the charges and accordingly, order for reinstatement of the petitioner without any backwages was passed and as such, the Management had withdrawn the Punit/-
7aforesaid writ petition with a liberty to raise the issue while assailing the final Award. On the other hand, the said Award dated 20.08.2018 of the learned Tribunal has been challenged by the workman by filing a writ petition being W.P.(L) No.1154 of 2019 for grant of full back wages as because the domestic enquiry was held to be illegal and the misconduct of the workman was not proved and further, it was held by the learned Tribunal that punishment is disproportionate to the charges levelled against the workman. The said Award dated 20.08.2018 was never challenged by the Management and as such, it has attained finality. Further, when the joining of the petitioner was not accepted, this Court in W.P.(L) No.1154 of 2019 vide order dated 28.09.2020 directed the Management to accept the joining of the petitioner, within a period of two weeks. On the next date of hearing i.e. on 13.10.2020, Mr. S.L. Agarwal, learned counsel for the Management submitted before this Court in W.P.(L) No.1154 of 2019 that the joining of the petitioner has already been accepted and services of the petitioner will be regularized with full salary, thereafter; the Management has preferred a Writ Petition being W.P.(L) No.3152 of 2020, instituted on 09.10.2020, challenging the Award dated 20.08.2018 as well as interim order dated 24.03.2017. Admittedly, the Award of the learned Tribunal has attained finality as after the order passed by this Court when the petitioner was directed to be reinstated into service and after accepting the joining of the petitioner, the Management has chosen to challenge the Award dated 20.08.2018 after two years, which is not acceptable to this Court as the impugned Award has already been given effect to and thus has attained finality. This shows the callousness and highhandedness at the part of the Management to harass the petitioner. The Limitation is for Management as also for Workman, none are permitted to approach the Court as per their own sweet will.
11. It was rightly held by the learned Tribunal vide order dated 24.03.2017 that the Management has not conducted domestic enquiry fairly and after following principle of natural justice and finding of the enquiry officer are perverse as per Clause 26 of the Standing Order as only, an Officer of the Management Company could be appointed as an Enquiry Officer, but Management has appointed an Advocate as an Enquiry Officer for conducting Domestic Enquiry, which is violation of its own Order/Rule. The Standing Punit/-
8Order is meant for its employee as well as Employer and as such, the Management cannot appoint an Advocate as an Enquiry Officer dehors the Rules/Standing Order. This Court is in full agreement with the interim order dated 24.03.2017. So far as grant of back wages is concerned, a workman whose service has been illegally terminated, would be entitled to full backwages except for the period he was gainfully employed during the enforced idleness, which is the normal rule. The Hon'ble Apex Court in the case of Jayantibhai Raojibhai Patel (Supra) was of the view that the general principle that back-wages must follow a determination in regard to the illegality of termination should be applied. This was sought to be supported by relying upon the decision of this Court in Hindustan Tin Works (P) Ltd. v. Employees (Hindustan Tin Works") and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya ("Deepali Surwase"). The Hon'ble Apex Court in the case of Rajasthan State Road Transport Corporation, Jaipur (Supra) has held in para-12 as under:
"12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee."
12. The sole question to be decided is as to whether in absence of any pleading regarding gainful employment, though the order of the termination has been set aside, whether petitioner is entitled for full back- wages?
13. In the case of Haryana Roadways Vs. Rudhan Singh reported in (2005) 5 SCC 591, the three-Judge Bench considered the question whether back wages should be awarded to the workman in each and every case of illegal retrenchment. The factual matrix of that case was that after finding the termination of the respondent's service as illegal, the Industrial Tribunal-cum- Labour Court awarded 50% back wages. The writ petition filed by the appellant was dismissed by the Punjab and Haryana High Court. The Hon'ble Supreme Court set aside the award of 50% back wages on the ground that the Punit/-
9workman had raised the dispute after a gap of 2 years and 6 months and the Government had made reference after 8 months. The Court then proceeded to observe: (SCC p. 596, para-8).
"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting application from the employment exchange, nature of appointment, namely whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed bhy him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."
14. In the case of U.P. State Brassware Corpn. Ltd. Vs. Uday Narain Pandey reported in (2006) 1 SCC 479, the two-Judge Bench observed as under:
"22. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputable, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be ranted mechanically only because on technical grounds or otherwise, an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act."
The Court also reiterated the rule that the workman is required to plead and prima-facie prove that he was not gainfully employed during the intervening period.
Punit/-
1015. In the case of Metropolitan Transport Corpn. Vs. V. Venkatesan reported in (2009) 9 SCC 601, it has been held at para-19 to 22 as under:
"19. First, it may be noticed that in the seventies and eighties, the directions for reinstatement and the payment of full back wages on dismissal order having been found invalid would ordinarily follow as a matter of course. But there is change in the legal approach now.
20. We recently observed in Jagbir Singh v. Haryana State Agriculture Mktg. Board, reported in (2009) 15 SCC 327, that in the recent past there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that the relief of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is held to be in contravention of the prescribed procedure.
21. Secondly, and more importantly, in view of the fact that the respondent was enrolled as an advocate on 12.12.2000 and continued to be so until the date of his reinstatement (15-6-2004), in our thoughtful consideration, he cannot be held to be entitled to full back wages. That the income received by the respondent while pursuing legal profession has to be treated as income from gainful employment does not admit of any doubt. In North-East Karnataka Vs. M. Nagangouda reported in (2007) 10 SCC 765, this Court held that 'gainful employment' would also include self-employment. We respectfully agree.
22. It is difficult to accept the submission of the learned Senior Counsel for the respondent that he had no professional earnings as an advocate and except conducting his own case, the respondent did not appear in any other case. The fact that he resigned from service after 2 - 3 years of reinstatement and re-engaged himself in legal profession leads us to assume that he had some practice in law after he took sanad on 12-12-2000 until 15-6-2004, otherwise he would not have resigned from the settled job and resumed profession of glorious uncertainties."
16. In the case of Jagbir Singh Vs. Haryana State Agriculture Mktg. Board reported in (2009) 15 SCC 327, the Apex Court has held as under:
"14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead Punit/-11
compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.
15. Therefore, the view of the High Court that the Labour Court erred in granting reinstatement and back wages in the facts and circumstances of the present case cannot be said to suffer from any legal flaw. However, in our view, the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages."
17. In the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya reported in (2013) 10 SCC 324, it has been held by the Hon'ble Supreme Court that reinstatement entitles employee to claim full back wages. Denial of back wages would amount to indirectly punishing the employee and rewarding the employer by relieving him of the obligation to pay back wages. Where employer wants to deny back wages or contest the employee's entitlement to get consequential benefits, employer has to plead and prove the employee was gainfully employed during the intervening period.
18. The reliance of the learned Sr. counsel for the Management in case of National Seeds Corporation (supra) is of no help to him as that case, it was held and observed that there is no absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulations and standing order, if any, regulating the conduct of disciplinary proceedings specifically recognize such a right and provide for such representation. Though on merits also, this Court was not satisfied with the arguments advanced by the learned Sr. counsel for the Management.
19. As a cumulative effect of the aforesaid rules, guideline and judicial pronouncement, the writ petition being W.P.(L) No.3152 of 2020 filed by the Management fails on merit and is hereby dismissed. Further, it can comfortably be held that as and when the termination order is set aside, the workman is entitled for backwages but as far as quantum is concerned, it depends on the judicial discretion after taking into consideration the nature and the charges against the employee and the pleadings supported by evidence regarding gainful employment. In the interest of justice, this Court thinks it proper to modify the Award dated 20.08.2018 passed by the learned Tribunal to Punit/-
12the extent that the workman is entitled for 50 % of the total backwages for the period from termination/dismissal till his reinstatement. Accordingly, writ petition of workman i.e. W.P.(L) No.1154 of 2019 is partly allowed with a direction to the respondent - Management to pay 50% of the total backwages for the period from the date of termination till date of his reinstatement, within a period of eight weeks from the date of receipt/production of a copy of this order.
(Dr. S.N. Pathak, J.) Punit/-