Indian Kanoon - Search engine for Indian Law

Madhya Pradesh High Court

J.B.Mangharam Foods Pvt. Ltd. vs Triloki Nath Dubey on 31 October, 2014

                                           W.P.No. 6554/2014

(J.B. Mangharam Foods Pvt. Ltd Vs. Trilokinath Dubey)

31.10.2014
      Shri S.R. Bhargava, Advocate for the petitioner.
      Shri Prashant Sharma, Advocate for the responent.
      This petition filed by the employer under Article 227
of   Constitution   of   India   assails   the     dismissal    of
miscellaneous application by Industrial Court, Gwalior
upholding the interlocutory order dated 16.06.2014 passed
by   the   Labour     Court   no.2   Gwalior      in   case    no.
71/A/MPIR/05, rejecting an application dated 26.05.2014
moved by the employer praying for a direction that the
employee should be asked to admit his past misconduct,
failing which, employer be afforded an opportunity to
establish by producing evidence, the factum of existence
of past misconduct, before considering           the question of
quantum of penalty.
      The learned counsel for the petitioner employer is
heard on the question of admission.
      The factual matrix giving rise to the instant petition is
that the employee respondent aggrieved of penalty of

removal inflicted by the petitioner employer after conduction of domestic inquiry, assailed the said penalty before the W.P.No. 6554/2014 Labour Court u/S 31, 61 and 62 of M.P. Industrial Relation Act 1960. The said proceedings before the Labour Court are pending till date.

During the course of pendency of the above said proceedings before the Labour Court No.2, Gwalior, issue no.1 pertaining to the legality and validity of the domestic inquiry was decided in favour of the petitioner employer by holding that the procedure followed in the domestic inquiry was legal and valid. Consequently, the Labour Court listed the case for hearing on the question of quantum of penalty.

Before the matter could be heard by the Labour Court on quantum of penalty, an application dated 26.05.2014 (vide Annexure P-10) was moved by the petitioner employer seeking a direction that the employee should be first asked to admit his past misconducts failing which, the petitioner employer be afforded an opportunity to prove the factum of past misconduct by adducing evidence. This application has been dismissed on 16.06.2014 by the Labour Court. The Labour Court held that since the case is listed for hearing on quantum of penalty after holding the procedure adopted in the domestic inquiry to be valid, there was no question of acceding to the request made by the employer in its application dated 25.07.2014. This order W.P.No. 6554/2014 dated 16.06.2014 of the Labour Court was unsuccessfully challenged in miscellaneous application before the Industrial Court, Gwalior, thereby bringing the petitioner employer before this Court in this petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

Learned counsel for the petitioner employer relying on Rule 12(3)(c) of the M.P. Industrial Employment (Standing Order) Act 1963 contends that the said statutory provision makes it incumbent upon the Court to take into account the provision with regard to previous record of the employee and other extenuating and aggravating circumstance while deciding on the question of penalty.

For convenience and ready reference Rule 12(3)(c) is reproduced below:

"(a)xxx

(b)xxx

(c)In awarding the punishment, the manager shall take into account the gravity of misconduct, the previous record of the employee, if any, and other extenuating or aggravating circumstances."

A bare perusal of the above said provision ellicits that burden is cast upon the employer to consider the previous record of the employee before deciding the question of W.P.No. 6554/2014 quantum of penalty.

The course of action being proposed by the employer in this petition as argued by the learned counsel for the employer is no where contained in Rule 12 of the Rules of 1963.

Moreover, the Labour Court has already decided the issue no.1 in favour of the employer by order dated 10.03.2014 vide P-9 by holding that the procedure adopted in conduction of domestic inquiry is legal and valid. The petitioner employer by filing this petition is asking for a direction of this Court to go behind the said order of the Labour Court of deciding the issue no.1 in favour of the petitioner employer. Importantly the said order of Labour Court deciding the issue no.1 in favour of the employer is no where assailed in this petition or even before the Industrial Court.The question of allowing employer to adduce evidence for or against any issue is not open unless the order dated 10.03.2014 (P-9) is set aside.

Consequently, this petition is not only untenable in law, but is also frivolous and vexatious piece of litigation, which has consumed precious time of this Court, thereby inviting rigors of imposition of cost.

The petitioner employer is directed to pay cost of Rs.

5,000/- out of which Rs. 3,000/- to be paid to the respondent employee and remaining in favour of M/s Institute of Advocates Continuing Legal Studies, within a period of sixty days from today and proof of compliance be filed in that regard before the Registry.

This petition accordingly is dismissed on merit with cost (supra) as being not worth admitting and also being frivolous and vexatious.

(Sheel Nagu) Judge sh/-