Chattisgarh High Court
Pramod Kumar Philips vs Chhattisgarh Infrastructure ... on 16 April, 2012
HIGH COURT OF CHATTISGARH BILASPUR
WRIT PETITION NO 1201 OF 1990
Pramod Kumar Philips
...Petitioners
Versus
Chhattisgarh Infrastructure Development Corporation & Others
...Respondents
! Shri Vinod Deshmukh Advocate for the petitioner ^ Shri Pradeep Saxena Advocate for the respondent CORAM: Honble Shri Satish K Agnihotri J Dated: 16/04/2012 : Judgement (Delivered on this 16th day of April, 2012) (Writ Petition under Article 226 & 227 of the Constitution of India)
1. By this petition, the petitioner-employee impugns the legality and validity of the order dated 30-6-1989 (Annexure - C) passed by the Labour Court, Durg, in case No.197/MPIR/87 (Pramod Kumar Philips v. Depot Manager) and the order dated 11-1-1990 (Annexure - D) passed by the Industrial Court, in appeal No.236/MPIR Act/89 (Shri Pramod Kumar Philips v. Division Manager).
2. The facts, in brief, as projected by the petitioner, are that initially the petitioner was appointed as Conductor on 26-2-1983 in the Madhya Pradesh State Road Transport Corporation (for short "the MPSRTC"). The services of the petitioner was terminated by order dated 30-1-1984. Being aggrieved by the said termination order, the petitioner approached the Labour Court and the Labour Court by order dated 5-4-1985 set aside the termination order and directed for reinstatement of the petitioner in service with back wages.
3. Subsequently, by order dated 22-8-1986 again the petitioner was terminated from the service on the ground that while the petitioner was working as Conductor in vehicle No.6712 in route between Nandgaon to Durg, carrying 14 passengers without ticket. The termination order was passed without issuing any notice or without affording proper opportunity of hearing to the petitioner and without following the basic principles of natural justice.
4. Thereagainst, the petitioner approached the Labour Court by filing an application under Section 31 (3) of the Madhya Pradesh Industrial Relations Act, 1960 (for short "the Act, 1960"). The Labour Court, after having considered all the aspects of the matter, by order dated 30-6-1989 (Annexure - C) dismissed the application filed by the petitioner. Against the said order, the petitioner approached the Industrial Court by filing an appeal. The said appeal was also dismissed by the Industrial Court without appreciating the facts and circumstances of the case in its letter and spirit. Thus, this petition.
5. Shri Deshmukuh, learned counsel appearing for the petitioner-employee, would submit that both the Courts below ought to have appreciated the fact that the respondent employer did not comply with the provisions of Rule 12 (1) and (4) of the M.P. Industrial Employment (Standing Orders) Rules, 1963 (for short the Rules, 1963), as there was no disciplinary action/ enquiry initiated against him, prior to issuance of termination order. The Courts below have not considered the statement of the petitioner as well as the statement of Shri B.P. Dwivedi, Depot Manager, who admitted in his statement that no charge sheet was issued to the petitioner before passing the termination order and even the departmental enquiry was not conducted against him. Shri Deshmukh would further submit that the respondent employer has also not produced any independent witness who was present at the time of alleged incident and also not recorded the statements of passengers who were allegedly traveling in the bus without ticket.
6. On the other hand, Shri Saxena, learned counsel appearing for the respondent No.1-employer, would submit that after formation of the new State of Chhattisgarh w.e.f. 1-11-2000 by notification dated 27-12-2002 (Annexure - R1/2) the Central Government apportioned the liabilities and assets as well as the employees between the State of Madhya Pradesh and the State of Chhattisgarh.
According to the said notification, the State of Chhattisgarh (CIDC) obtained only the personnel of the MPSRTC who were in service as on 1-1-2003. Shri Saxena would further submit that since the petitioner was terminated from the service in the year 1986, the CIDC has no role in case of the petitioner. Thus, the petitioner is not entitled to any relief from the CIDC and the petition may be dismissed.
7. I have heard the learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.
8. The Labour Court framed the following issues :
a. Whether the employee is Yes guilty of misconduct as stated in the written No statement b. Whether termination Nothi order dated 22.09.1986 is ng void, illegal or contrary to the principles of natural justice.
c. Releif and expenses
9. The Labour Court held that the misconduct relates to the incident of 31-3-1986, wherein, the employee permitted the passengers without ticket and second time on 17-4- 1986, where 14 passengers traveled without tickets and, as such, both the incidents amount to misconduct. Depot Manager, Shri B.P.Dwivedi was examined in respect of the earlier incident dated 31-3-1986. It was stated in the written statement that the petitioner was penalized by imposition of Rs.300/-. In respect of second incident, it is stated that the petitioner declined to give ticket book and collection voucher to the Inspectors and misbehaved with them. The panchnama was prepared and statements were recorded. However, there is no mention asto whether any enquiry was held before the termination order was passed.
10. The Labour Court after considering the statements made by various persons, came to the conclusion that the petitioner was guilty of misconduct and the punishment imposed thereon was just and proper. In appeal, the Industrial Court affirmed the findings and order passed by the Labour Court by order dated 11-1-1990 (Annexure D).
11. Before this Court, the respondent No.1 did not submit anything on merit, particularly with regard to the departmental enquiry except that on dissolution of the MPSRTC, by notification dated 13-12- 2002, the petitioner was not entitled to any relief from the respondent No.1.
12. Rule 11 of the Rules, 1963 deals with termination of employment and the notice thereof to be given by the employer and employee. Clause (a) of Rule 11 provides that before the employment of a permanent employee is to be terminated, he shall be given one month's notice or shall be paid wages for one month in lieu of notice. No employee other than a permanent employee shall be entitled to any such notice or wages in lieu thereof for termination of his service.
13. Rule 12 (1) of the Rules, 1963 lays down the definition of `major misconduct'. Rule 12 (4) provides that no employee shall be punished unless the acts or omissions on the part of an employee shall amount to a major misconduct and the enquiry should be conducted in the manner prescribed under the said rules. Clause (a) of Rule 12 (4) provides that the charge of misconduct and the circumstances appearing against him and requiring the explanation, shall be given to the employee. The employee shall be given, to submit his explanation, thereafter, at least 72 hours, if he is charged with major misconduct. The employee shall be allowed to defend by himself or the representative of employees, if he so desires. Clause (d) of Rule 12 (4) provides that except in cases where he admits the charge leveled against him the employee shall be permitted to produce witness in his defence and cross- examine any witness on whose evidence the charge rests. There shall be recording of substance of the evidence, order of punishment shall be in writing, etc.
14. In the case on hand, it is an admitted position that there was no enquiry before the impugned order of termination was passed on 22-8-1986. The petitioner was terminated by the MPSRTC. MPSRTC was initially impleaded as party respondent, thereafter, the same was deleted and substituted by the Chhattisgarh Infrastructure Development Corporation.
15. On perusal of the Labour Court's order, it appears that Depot Manager, Inspector and the Driver were examined. The petitioner was also afforded an opportunity to cross-examine them. During the proceedings before the Labour Court and on consideration, it was found that the petitioner was guilty of carrying the passengers without ticket. It amounts to misconduct under the provisions of Rules, 1963. Thus, it cannot be held that the petitioner was not afforded an opportunity of hearing.
16. The Labour Court in addition to deciding the dispute referred to it has additional power under Section 61 of the Act, 1960 to decide the dispute and while deciding the dispute, if no enquiry is held, the Labour Court may hold proper enquiry after affording proper opportunity of hearing to the parties concerned.
17. Having regard to provisions of Rule 12 (4) of the Rules 1963, wherein the permanent employee is entitled only notice for submission of explanation, it cannot be held that there should be a proper enquiry, as contemplated in other service Rules. It is evident that proper enquiry was held by the Labour Court. The petitioner was afforded proper opportunity of hearing before passing the impugned order, by the Labour Court.
18. It is a trite law that the principles of natural justice cannot be put into a straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise. (See: Ashok Kumar Sonkar v. Union of India and Others1 para 27 pg.66).
19. In the case on hand, the petitioner has not established that how he would be prejudiced if the enquiry had taken place before the termination order was passed, when he was afforded full opportunity of hearing before the Labour Court and the allegation of misconduct was proved after affording full opportunity of hearing to the petitioner.
20. The Supreme Court in Rajasthan State Road Transport Corporation and Others v. Deen Dayal Sharma2, observed as under :
"15. The legal position that Standing Orders have no statutory force and are not in the nature of delegated/subordinate legislation is clearly stated by this Court in Krishna Kant. In that case (Krishna Kant), this Court while summarising the legal principles in para 35(6) stated that the certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to "statutory provisions"
and any violation of these Standing Orders entitles an employee to appropriate relief either before the forum created by the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principles indicated therein."
In the instant case, there is no grievance of infringement of any provisions of the Act or of the Rules, 1963.
21. Reliance of the petitioner upon the decision of the Supreme Court in Amar Chakravarty and Others v. Maruti Suzuki India Ltd.3, is not relevant to the facts of the present case, as the said dispute arose under the provisions of the Industrial Disputes Act, 1947, wherein, enquiry of misconduct was required.
22. In the case on hand, under the provisions of Rules 11 and 12 (4) of the Rules, 1963, a permanent employee is entitled to notice only to submit reply. There is no challenge to the provisions of Rules 11 as well as 12(4) of the Rules, 1963.
23. The decision of the Supreme Court in Satwati Deswal v. State of Haryana and Others4, relied on by the petitioner, is also not applicable to the facts of the present case.
24. It is not the case of the petitioner that the termination of the petitioner is a case of retrenchment and, as such, reliance of the petitioner upon the decision of the Madhya Pradesh High Court rendered in Factory Manager, Central India Machinery Mfg. Co. Ltd., Gwalior and Another v. Naresh Chandra Saxena and Others5, is not applicable.
25. In view of foregoing facts and circumstances of the case, it is not necessary to adjudicate on the issue of allocation of liability between the MPSRTC, which is not a party before this Court and the respondent No.1- Chhattisgarh Infrastructure Development Corporation.
26. Applying the well settled principles of law to the facts of the present case and for the reasons mentioned hereinabove, the writ petition, being bereft of merit, is liable to be and is hereby dismissed.
27. There shall be no order asto costs.
J u d g e