Allahabad High Court
U.P.S.R.T.C. Thru Its Regional Manager ... vs Devendra Kumar Verma And Others on 19 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1570
Author: Ravi Nath Tilhari
Bench: Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On 07.02.2020 Delivered on 19.06.2020 A.F.R. Case :- WRIT - C No. - 17599 of 2006 Petitioner :- U.P.S.R.T.C. Thru Its Regional Manager Jhansi Region Respondent :- Devendra Kumar Verma And Others Counsel for Petitioner :- Rahul Anand Gaur,J.N. Singh,Nishant Mehrotra,Sheo Ram Singh Counsel for Respondent :- C.S.C.,G.K. Srivastava,Ranjeet Kumar Misra Hon'ble Ravi Nath Tilhari,J.
(1). Heard Sri Sheo Ram Singh, learned counsel for petitioner and Sri Ajai Kumar Tiwari, learned Standing Counsel. No one appeared for private respondents to argue the matter even in the revised list. The Court proceeded to hear the matter as it is pending since 2006. After hearing the learned Counsel for the petitioner and the learned Standing counsel, judgment was reserved.
(2). The petitioner has challenged the Award dated 23.9.2005 passed by Presiding Officer, Labour Court-II U.P. Kanpur/Respondent No. 2 in Misc. Dispute No. 40 of 2001, under Section 6-F of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act 1947'). By the said award, the order bearing no. 8025 dated 26.12.2000 passed by U.P. State Road Transport Corporation, Jhansi area office Tehsil Road, Jhansi through Regional Manager/ Respondent No. 3 and the appellate order dated 23.4.2001 removing the respondent no. 1 from services, have been declared illegal and the petitioner-corporation was directed to restore the services of respondent no. 1 (now deceased and substituted by his heirs and legal representatives as respondent nos. 1/1 to 1/4), giving continuity in service with all consequential benefits, including payment of full salary and other allowances. The rest part of the order dated 26.12.2000, whereby salary/wages of suspension period was denied and recovery of the amount of loss of tickets to the tune of Rs. 30734.70/-, was directed, was maintained by the Labour Court.
(3). Briefly stated facts of the case are that the respondent no. 1, Devendra Kumar Verma was engaged as conductor and was posted at Rath Depot in Jhansi Region, Jhansi. He was chargesheeted and a preliminary inquiry was held for the alleged misconduct dated 23.9.1995, i.e. he was caught red handed carrying 13 passengers in bus No. UGO-9890 without tickets. Vide order dated 25.9.1998 he was found guilty of misconduct. The departmental appeal filed by respondent no. 1 was partly allowed vide order dated 26.3.1999 modifying the order of punishment of removal to stoppage of two years' increments without affecting his future services. The respondent no. 1 raised Industrial Dispute before the Labour Court, Kanpur being Adjudication Case No. 47/2001.
(4). The respondent no. 1 is alleged to have committed serious misconduct on dated 13.6.1999, 17.6.1999 and 18.6.1999. He was chargesheeted for various charges vide order dated 23.8.1999. In the Departmental Inquiry, the Inquiry Officer submitted the inquiry report and returned the finding that all charges were proved. The punishing authority after affording opportunity of hearing passed the order of punishment of removal from services on 26.12.2000. The departmental appeal was dismissed vide order dated 23.4.2001.
(5). The respondent no. 1 raised Industrial Dispute before the Labour Court, being Misc. Adjudication Case No. 40/2001 under Section 6-F of the U.P. Industrial Disputes Act, 1947, challenging the order dated 26.12.2000 and the appellate order dated 23.4.2001, inter-alia, on the ground that with respect to the order dated 26.12.2000, the petitioner-corporation did not seek permission from the Labour Court although the first dispute being adjudication case No. 47 of 2001 was pending before the Labour Court.
(6). The petitioner-corporation filed reply stating that the pending dispute in Misc. Dispute No. 47 of 2001 was not connected with the new dispute and as such the provisions of Section 6-E of the Act 1947 were not applicable nor attracted. The charges against the respondent no. 1, were grievous in nature and he was guilty of cheating and embezzlement.
(7). The Labour Court passed an Award dated 22.9.2005 in favour of respondent no. 1 holding the order dated 26.12.2000 and appellate order dated 23.4.2001 as illegal and directed the reinstatement of respondent no. 1 in service with continuity of service and directed the payment of entire salary, allowances and other benefits with effect from 20.12.2000. However, Labour Court maintained the part of order by which the salary for suspension period was forfeited and the recovery of loss of tickets from the respondent no. 1 was directed, was maintained.
(8). Sri Sheo Ram Singh, learned counsel for the petitioner-corporation has submitted that Section 6-E (2) of U.P. Industrial Disputes Act, 1947 was not attracted and the Labour Court acted illegally in granting protection/benefit of Section 6-E (2) of the Act,1947 to the respondent no. 1 as well as in awarding the claim, in favour of respondent no. 1. He has submitted that the dispute pending in Adjudication Case No. 47 of 2001 was different than the dispute in the present Adjudication Case No. 40 of 2001 and as such Section 6-E (2) of the Act was not attracted.
(9). Learned counsel for the petitioner has next submitted that the respondent no. 1 did not raise this plea of Section 6-E (2) of the Act, 1947, in the Departmental Appeal and as such it was not open for him to raise this plea before the Labour Court for the first time. The impugned Award, as such, deserves to be quashed, in his submission.
(10). Learned Standing Counsel has supported the Award of the Labour Court on the ground the order has been passed. He has submitted that Section 6-E (2) of the Act, 1947 was attracted and as the petitioner did not comply with the same, there is no illegality in the Award passed by the Labour Court, which Award does not call for any interference by this Court in the exercise of writ jurisdiction.
(11). I have considered the submissions of the learned counsel for the petitioner and the learned standing counsel and have perused the material on record.
(12). The short point involved in this case is whether Section 6-E (2) of the Act, 1947, is attracted to the present case or not.
(13). It is appropriate to reproduce Section 6-E of the U.P. Industrial Disputes Act, 1947 as under:
[6E. Conditions of service, etc. to remain unchanged in certain circumstances during the pendency of proceedings. - (1) During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal in respect of an industrial dispute, no employer shall, -
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding, or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, -
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding, or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise :
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
(3) Notwithstanding anything contained in sub-section (2) no employer shall during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute, -
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding, or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, such with the express permission in writing of the authority before which the proceeding is pending.
Explanation. - For the purposes of this sub-section, a 'protected workman' in relation to an establishment, means a workman who, being an officer of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to be recognized as protected workmen for the purposes of sub-section (3) shall not exceed one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the State Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which they may be chosen and recognized as protected workmen.
(5) Where an employer makes an application to a Board, Labour Court or Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, as expeditiously as possible, such order in relation thereto as it deems fit.] (14). A bare perusal of Section 6-E(1) of the Act, 1947 shows that during pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal in respect of an industrial dispute, no employer shall, (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding, or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending. This sub-section (1) relates to the matter or dispute which is pending before Conciliation Officer or Board or Labour Court or Tribunal i.e. the same dispute and no such action as under Clauses (a), (b) can be taken without the express permission in writing of the authority before whom the proceeding is pending.
(15). Perusal of Section 6-E(2) shows that during pendency of any 'such proceeding' in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding, or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise. This is subject to the proviso, which provides that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending, for approval of the action taken by the employer.
(16). 'Such proceedings' in Section 6-E(2) refers to pendency of any conciliation proceeding, before a conciliation officer or a Board or any proceeding before Labour Court or Tribunal in respect of industrial dispute as has been mentioned in sub-section 1 of Section 6-E. (17). Thus as per Section 6-E (2), notwithstanding the pendency of any proceeding in respect of an industrial dispute before the Labour Court or the Tribunal etc., for any act of misconduct, which is not connected with the pending dispute, the workman can still be discharged or dismissed or punishment may be imposed by the employer but two conditions are to be complied with as provided under the proviso. First, that the workman has to be paid one month's wages and second, the employer has to file an application before the authority concerned before whom the proceedings with respect to first dispute are pending for approval of the action of the employer.
(18). Admittedly, in the present case any such application as referred to in the proviso was not made by the employer seeking approval of its action/order with respect to respondent no. 1. The submission of learned counsel for the petitioner that if the dispute is not connected with the previous dispute, Section 6-E (2) of the Act, 1947 is not attracted, on the face of the statutory provision, is misconceived and cannot sustained.
(19). The next submission of learned counsel for the petitioner that as respondent no. 1 did not raise the plea of the employer not filing the application as provided in the proviso of Section 6-E (2), in the departmental appeal, filed against the order of punishment dated 26.12.2000, he could not take this plea before the Labour Court, also deserves rejection being misconceived.
(20). There is no prohibition or restriction in Section 6-E (2), proviso, of the Act, 1947 that plea of non-compliance of the proviso cannot be raised before the Labour Court, if such plea had not been taken in the departmental appeal. No such restriction can be imposed or placed, when the provision is very specific and clear and is for the welfare of the employee/workman. If the contention of the petitioner's counsel is accepted then this Court would be re-writing the proviso or placing another proviso to Section 6-E (2), which is not the function of the Court.
(21). In the case of J.K. Industries Ltd. And others vs. Chief Inspector of Factories and Boilers and others (1996) 6 SCC 665, the Hon'ble Supreme Court has held that a proviso to a provision in a statute has several functions and while interpreting a provision of the statute, the Court is required to carefully scrutinize and find out the real subject of the proviso appended to that provision. A proviso is normally used to remove special cases from the general enactment and provide for them specifically. A proviso qualifies the generality of the main enactment by providing an exception and taking out from the main proviso, portion, which, but for the proviso would be a part of the main provision. A proviso should not be read as if providing something by way of addition to the main provision which is foreign to the main provision itself.
(22). It is relevant to reproduce Paragraph Nos. 33 to 36 of the case of J.K. Industries Ltd. And others (supra) as under:
33. A proviso to a provision in a statute has several functions and while interpreting a provision of the statute, the Court is required to carefully scrutinise and find out the real object of the proviso appended to that provision. It is not a proper rule of interpretation of a proviso that the enacting part or the main part of the Section be construed first without reference to the proviso and if the same if found to be ambiguous only then recourse may be had to examine the proviso as has been canvassed before us. On the other hand an accepted rule of interpretation is that a Section and the proviso thereto must be construed as a whole each portion throwing light, if need be, on the rest. A proviso is normally used to remove special cases from the general enactment and provide for them specially.
34. A proviso qualifies the generality of the main enactment by providing an exception and taking out from the main provision, a portion, which, but for them proviso would be a part of the main provision. A proviso must, therefore, be considered in relation to the principal matter to which it stands as a proviso. A proviso should not be read as if providing something by way of addition to the main provision which is foreign to the main provision itself.
35. Indeed, in some cases, a proviso, may be an exception to the main provision though it cannot be inconsistent with what is expressed in the main provision and if it is so, it would be ultra-vires of the main provision and struck down. As a general rule in construing an enactment containing a proviso, it is proper to construe the provisions together without making either of them redundant or otiose. Even where the enacting part is clear, it is desirable to make an effort to give meaning to the proviso with a view to justify its necessary.
36. While dealing with proper function of a proviso, this Court in The Commissioner of Income-Tax, Mysore & Ors. vs. The Indo Mercantile Bank Ltd. & Ors. MANU/SC/0070/1959 : [1959]36ITR1(SC) opined:
The proper function of a proviso is that it qualifies the generality of the main 10 enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment.
(23). In case of Casio India Company Pvt. Ltd. Vs. State of Haryana 2016(6) SCC 209, Hon'ble Supreme Court has held that: proviso can serve various purposes. Generally, it is in the nature of an exception. The proviso should not be normally construed as nullifying the enactment or as taking away completely a right conferred. It is relevant to reproduce Paragraph Nos. 22 & 23 as under:
"22.It needs no special emphasis to mention that provisos can serve various purposes. The normal function is to qualify something enacted therein but for the said proviso would fall within the purview of the enactment. It is in the nature of exception. [See : Kedarnath Jute Manufacturing Co. Ltd v. Commercial Tax Officer[12]]. Hidayatullah, J. (as his Lordship then was) in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhsh Chandra Yograj Sinha[13] had observed that a proviso is generally added to an enactment to qualify or create an exception to what is in the enactment, and the proviso is not interpreted as stating a general rule. Further, except for instances dealt with in the proviso, the same should not be used for interpreting the main provision/enactment, so as to exclude something by implication. It is by nature of an addendum or dealing with a subject matter which is foreign to the main enactment. (See : CIT, Mysore etc. v Indo Mercantile Bank Ltd[14]). Proviso should not be normally construed as nullifying the enactment or as taking away completely a right conferred.
23. Read in this manner, we do not think the proviso should be given a greater or more significant role in interpretation of the main part of the notification, except as carving out an exception. It means and implies that the requirement of the proviso should be satisfied i.e. manufacturing dealer should not have charged the tax. The proviso would not scuttle or negate the main provision by holding that the first transaction by the eligible manufacturing dealer in the course by way of inter-state sale would be exempt but if the inter-state sale is made by trader/purchaser, the same would not be exempt. That will not be the correct understanding of the proviso. Giving over due and extended implied interpretation to the proviso in the notification will nullify and unreasonably restrict the general and plain words of the main notification. Such construction is not warranted."
(24). In view of the aforesaid judgments, this Court is of the considered view that no rider can be put to the proviso of Section 6-E(2) so far as the conditions mentioned therein are concerned for the employer to comply with. The proviso which imposes conditions for performance of certain act, those conditions are to be fulfilled by the employer, before he can take action as contemplated under Sub-section (2) of Section 6-E of the Act, 1947.
(25). No other point has been pressed by the learned counsel for the petitioner.
(26). Thus considered, the writ petition deserves to be dismissed.
(27). The respondent no. 1, in whose favour the award was passed has died and has been substituted by his legal representatives as respondent nos. 1/1 to 1/4. As such the monetary benefits under the Award deserves to be given to the respondent nos. 1/1 to 1/4, if not already paid to the deceased respondent. It is ordered accordingly.
(28). The writ petition lacks merits and is hereby dismissed. No orders as to costs.
Order Date :- 19.6.2020 A. Singh