Orissa High Court
Mgt. Of Orissa Road Transport Company ... vs M. Venkata Rao And Anr. on 6 February, 1992
Equivalent citations: (1993)ILLJ468ORI
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. Both these writ applications are against the same award of the Industrial Tribunal, the former being by the Management and the latter being by the employee. The Management assails the award and claims that the Management is not liable either to reinstate the employee or to pay any back wages. The employee challenges that part of the award directing payment of fifty per cent of back wages and claims that in view of the finding of the Tribunal, he is entitled to get full back wages.
2. The short facts are that opp. party No. 1 in O.J.C. No. 2938 of 1988 was working as a Bus Driver under the petitioner which is a company incorporated under the Indian Companies Act carrying on the business of road transport. On January 10, 1976, while said opp. party No. 1 was going out of the garage, he was stopped by the watcher at the main gate and he was found to be carrying two litres of engine oil. A regular departmental proceeding was initiated against him and he was found guilty of the charge. Ultimately he was discharged from service with effect from March 30, 1977. The employer filed an application before the Industrial Tribunal for approval of the action taken by him in accordance with the proviso to Section 33(2)(b) of the Industrial Disputes Act. The Tribunal accorded approval by order dated May 3, 1979. The workman assailed the said order in this Court in O.J.C No. 1445 of 1979 and by judgment dated May 7, 1984, the writ application was dismissed. Subsequent to the dismissal of the writ application, opp. party No. 1 moved the State Government for making a reference to the Tribunal for adjudication as to whether the punishment awarded by the Management is just and/or proportionate and if not to what relief the workman is entitled. The reference was obviously made under Sub-section (5) of Section 12 read with Clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act. The exact reference is extracted herein below extenso:
"Whether the punishment awarded by the Management of O.R.T. Co Ltd., Berhampur to its workman Sri M. Venkata Rao is just and/or proportionate? If not, to what relief the workman is entitled?"
The Tribunal by the impugned award came to the conclusion that the infliction of extreme punishment of discharge was highly disproportionate to the charge of misconduct levelled against the delinquent driver and as such was unjustified. The Tribunal therefore directed that the workman should be reinstated and 50 per cent of the backwages should be paid to him from the date of discharge till reinstatement. It is this award of the Tribunal, annexed as Annexure-2, which has been assailed by the employer in O.J.C. No 2938 of 1988 and the employee has assailed the direction with regard to payment of fifty percent of back wages in the other O.J.C.
3. Mr. Murthy appearing for the employer in O.J.C No. 2938 of 1988 argues with vehemence that in view of the order of approval of the Tribunal under Section 33(2)(b) of the Industrial Disputes Act which was confirmed by this Court in O.J.C. No. 1445 of 1979, the Tribunal was incompetent to enter into an enquiry into the said matter in a reference under Section 10 and, therefore, the award of the Tribunal must be held to be without jurisdiction. This question has been recently considered by us at length in a writ application filed by the self-same employer in O.J.C. No. 3375 of 1990 The Management of Orissa Road Transport Company Limited v. The Workman T. Bangali Patra and Anr.), disposed of on September 16, 1991. After noticing a catena of decisions of different High Courts as well as of the Supreme Court and analysing the power of Tribunal under Section 33(2)(b) of the Industrial Disputes Act and as well as such power of the Tribunal under Section 10 of the said Act, it was held that an order of approval under Section 33(2)(b) could not be a bar to such a reference and when the reference is made, the same had to be decided on its own merits in accordance with law. Following the aforesaid decision of ours, we reject the first submission of Mr. Murthy, the learned counsel for the employer-petitioner.
4. Mr. Murthy, the learned counsel, then urges that the employee having reached the age of superannuation on July 16, 1988, the direction for reinstatement cannot be operative beyond the age of superannuation. The award of the Tribunal is dated May 17, 1988 and the date of superannuation of the employee was July 16, 1988. Therefore, the order of reinstatement could have been implemented till July 16, 1988 and not beyond the said date. In fact, when opposite party No. 1 employee filed an application under Section 17-B of the Industrial Disputes Act, which was registered as Misc. Case No. 2813 of 1989, this Court had rejected the said application on September 1, 1989 on the ground the said opp. party No. 1 having been superannuated, the question of getting any current salary would not arise. Mr. Swamy, appearing for the employee, does not dispute the fact that opp. party No. 1 reached his age of superannuation on July 16, 1988. Therefore, the order of reinstatement could be effective only till the age of superannuation.
5. The next question that arises for consideration is whether the direction to pay 50% of back wages can be said to be in any way infirm. On this question, Mr. Murthy for the petitioner in O.J.C. No. 2938 of 1988 contends that the workman is not entitled to payment of any arrear back wages and at the most he would be entitled to the wages for the period from the date of the award of the Tribunal till the date of his superannuation. Mr. B.L.N. Swamy, appearing for the employee-petitioner in OJ.C. No. 2097 of 1989, on the other hand, contends that the order of discharge being grossly disproportionate to the delinquency of the petitioner-employee, and the Tribunal having found the same to be illegal and unjustified, the petitioner is entitled to full back wages from the date of his termination till the date of his superannuation and the Tribunal committed an error by allowing only fifty per cent of the back wages. Under Section 11-A of the Industrial Disputes Act, where a tribunal comes to the conclusion that the order of discharge was not justified, then it may by its award set aside the order of discharge and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. In fact, the reference that was made by the State Government was for the purpose of aforesaid adjudication and the Tribunal has proceeded on that basis. The entire charge against the employee was that he was taking two litres of engine oil and even that two litres was by approximation. The cost of two litres of engine oil has been found by the Tribunal to be Rs. 20/-and, therefore, the Tribunal has rightly come to the conclusion in our considered opinion that the extreme punishment of discharge was wholly uncalled for. While directing payment of fifty per cent of back wages, the Tribunal has also considered the question of prior approval as well as the dismissal of the writ petition filed by the employee in this Court against the said order of approval. An order of termination for theft of two litres of engine oil is undoubtedly grossly disproportionate to the delinquency. Under Section 11-A of the Industrial Disputes Act, a duty has been cast on the Tribunal to consider as to whether or not the impugned punishment was just and proper in the facts and circumstances of the case and whether or not in the ends of justice it is desirable to inflict a lesser punishment on the concerned employee. In other words, the quantum of punishment passed by the employer could be gone into by an industrial tribunal. In that view of the matter, in the facts and circumstances of the present case, the direction of the Tribunal for reinstatement cannot be said to be illegal in any manner.
6. On reinstatement, the normal rule is that an employee would get his full back wages. But it is open for a tribunal to slice off a part of the dues if the workman is not wholly blameless or for any other good reason. To what extent wages for the long interregnum should be paid is, therefore, a variable dependant on a complex of circumstances. The law in this regard has been discussed by their Lordships of the Supreme Court in the case of Gujarat Steel Tubes Ltd. etc. etc. v. Gujarat Steel Tubes Mazdoor Sabha and Ors., 1980-I-LLJ-137. In this view of the matter, taking into account the earlier order of approval passed by the Industrial Tribunal as well as the gravity of the delinquency, the Tribunal has directed payment of fifty per cent of back wages and the said direction cannot be said to be vitiated in any manner. We do not find any error in the same so as to be interfered with by this Court. We, therefore, decline to interfere with the award of the Tribunal, but we observe that the employee would be entitled to fifty per cent of back wages from the date of termination till the date of the award passed by the Tribunal i.e. May 17, 1988 and from May 17, 1988, till July 16, 1988, the date of superannuation, he would be entitled to full wages.
7. Both the writ applications are dismissed with the aforesaid observations. There will be no order as to costs.
D.M. Patnaik, J.
8. I agree.