Allahabad High Court
M/S Hotel Yamuna View Ltd. Unit Agra ... vs Presiding Officer, Industrial ... on 25 February, 2015
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 7 Case :- WRIT - C No. - 11369 of 2015 Petitioner :- M/S Hotel Yamuna View Ltd. Unit Agra Ashok, Respondent :- Presiding Officer, Industrial Tribunal (4) U.P. Agra And Anr Counsel for Petitioner :- Piyush Bhargava Counsel for Respondent :- C.S.C.,Illigible Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Piyush Bhargava, learned counsel for the petitioner and Sri K.R. Rai, learned Additional Chief Standing Counsel for the respondent no. 1 and Sri Gaurav Singh, learned counsel for the respondent no. 2.
2. This writ petition has been filed belatedly challenging the impugned award dated 26th November, 2013 passed by the respondent no. 1 in Adjudication Case No. 31/2011 and the orders dated 12th December, 2007 and 17th October, 2012 passed by the Respondent no.1.
3. Learned counsel for the petitioner submits that the impugned award has been passed without compliance of the provision of Section 5-C of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the "Act"), inasmuch as, the application of the petitioner for summoning witnesses was not allowed. The enquiry is wholly valid, and therefore, respondent no. 1 was not justified in passing the impugned award. The respondent no. 2 himself refused to take assistance of any co-workman. The request of the respondent no.2 for being represented through an outsider Sri I.R. Hamilton, was not allowable as per Clause 16(e) of the standing order which provides that the workman shall be entitled to be represented by a co-workman of the establishment and will not have any right to be assisted by an outsider. He submits that principles of natural justice have been followed, as evident from cross examination of the workman. He submits that the respondent no. 2 himself did not cross examine the witnesses of the petitioner. He submits that the petitioners are ready to comply with the order to reinstate the respondent no. 2, but despite the letter ( Annexure 28) and the letter dated 27th January, 2015 ( Annexure No. 29), the respondent no. 2 did not join the duties. He submits that the respondent no. 2 is merely interested in extracting money from the petitioner's management and for that reason, he is not joining, although petitioners are ready to comply with the award. In support of his submissions, he relied upon the following judgments : -
(i) Indian Telephone Industries Ltd. Vs. Devishanker Kumar Shukla, 2000-I-LLJ 531 SC,
(ii) Saran Motors Private Ltd., New Delhi Vs. Vishwanath and another, (1964) 9FLR 7 SC,
(iii) Crescent Dyes & Chemicals Ltd. Vs. Ram Naresh Tripathi, (1993) 1 LLJ 907 (para 11) ,
(iv) State Bank of India and others Vs. Narendra Kumar Pandey, (2013) 136 FLR 704 .
4. Learned Additional Chief Standing Counsel supports the impugned award.
5. Learned counsel for the respondent no. 2 submits that the impugned award has been passed well in accordance with law and it does not suffer from any illegality or infirmity . He submits that the petitioners have arbitrarily and illegally terminated the services of the respondent no. 2. The entire enquiry proceeding was conducted with a biased mind and by an unuthorized person, i.e. Sri Anil Kumar Agrawal, Advocate, inasmuch as Clause 16(b) of the certified standing order specifically provides that if the workmen's explanation is not satisfactory then inquiry will be held by an officer superior to him. He submits that since, the standing order specifically provides for enquiry by a superior officer, and therefore, the enquiry held by an outsider was wholly without authority of law. He submits that the petitioners have violated the principles of natural justice with regard to which findings of fact have been recorded in the order dated 12.12.2007 as well as in the impugned award. He submits that numerous opportunities were afforded to the petitioners by the respondent no.1, but they failed to adduced any evidence, and therefore, the impugned award is wholly correct. He submits that the writ petition is highly belated and hit by principle of latches. He submits that the petitioners themselves accepted the award and learned counsel for the petitioner has also stated before this Court that the petitioners are ready to comply with the impugned award and are ready to reinstate the respondent no.2. He submits that the letter filed as Annexure No. 28 and the letter dated 27th January, 2015 filed as Anenxure No. 29 itself show that the petitioners have accepted the award, and therefore, he cannot be allowed to challenge the award. He submits that the writ petition is hit principle of approbate and reprobate. He submits that the fact is that although the petitioners have accepted the award and are ready to give joining to the respondent no. 2 but they did not permit the joining, when the respondent no. 2 appeared on 7.6.2014 and 9.6.2014 before the petitioners. On 9.6.2014, he reported for joining in writing to the General Manager of the petitioner, which was duly acknowledged who directed the petitioner not to enter into the lobby and to remain with the doorman out side the hotel. He submits that under the circumstances, the respondent no. 2 wrote a letter on 9th June, 2014 to the Deputy Labour Commissioner, Agra and on that the Deputy Labour Commissioner directed the Labour Enforcement Officer, Agra, that the joining of the respondent no. 2 be ensured. He submits that the respondent no. 2 also written a letter dated 16.6.2014 requesting the petitioner to take him on duty on the post on which, he was working.
6. He further submits that the respondent no. 2 is ready to join duty, and therefore, the petitioner may be directed to permit the respondent no. 2 to join the duty in compliance to the award which they have accepted.
7. I have carefully considered the the submissions of learned counsel for the parties.
8. Briefly stated the facts of the present case are that the petitioners terminated the services of the respondent no. 2 on 7.10.2003. An industrial dispute was raised by the respondent no.2 and a reference was made by the competent authority vide order dated 11.5.2004 which was registered as Adjudication Case No. 124 of 2004. The Presiding Officer, by order dated 12.12.2007 held that the domestic enquiry is not correct and found it to be against the standing order and in violation of principles of natural justice .
9. Against this order, the petitioner preferred a Writ Petition No. 14522 of 2008 which was dismissed by order dated 17.10.2008. Thereafter, the petitioner did not adduce any evidence, despite number of opportunities offered by the prescribed authority, and instead, he moved an application for transfer of the case from the Court of Prescribed Authority before the Labour Court, U.P,. Agra and on that the case was transferred to the respondent no.1 by order of the competent authority dated 31st January, 2011. Thus, the matter came up for hearing before the respondent no. 1, Prescribed Authority and it was renumbered as Adjudication Case No. 31/2011.
10. In the order dated 12.12.2007 the prescribed authority found the domestic enquiry to be wholly arbitrary and illegal on the grounds that as per standing order only an officer superior to the workman can be appointed as an enquiry officer, and therefore, the appointment of an outsider as enquiry officer wholly illegal. No evidence was produced before the enquiry officer on the basis of which it can be said that the demand letter was forcibly singed by the employees. In the complaint letters there is no reference of any date of the alleged demand letter. Vide letter dated 9.5.2003 the respondent no. 2 demanded the copies of the documents on the basis of which the charge-sheet was prepared and the names of witnesses, but the documents and list of witnesses were not given. No misconduct is proved from the complaints and no action was taken by the petitioners on the allegations made by the respondent no. 2 against the enquiry officer. The respondent no. 2 sought permission to take assistance of one Sri I.R. Hamilton, but it was not permitted. The statements of petitioner's witnesses, namely, Nandeshwar Giri and Vimal Joshi were recorded by the Enquiry Officer behind the back. Briefly on these findings, the Prescribed Authority came to the conclusion that enquiry was not fair and legal.
11. In the impugned award dated 26th November, 2013 the respondent no. 1 has recorded findings of fact that from perusal of the demand letter, it is evident that it does not bear any demand of the respondent no.2. No evidences whatsoever were filed by the petitioners before the respondent no. 1 in support of the charges leveled against the respondent no.2. The charges have not been proved by any documentary or oral evidence. The respondent no.1, while passing the impugned award has also observed that number of opportunities were afforded to the petitioners to adduce evidences to prove the charges, but the petitioners did not turn up. The respondent no. 1 observed / held in paragraph no. 2.6, 3 and 4 of the impugned award as under :-
^^2-6 mijksDr vkns'k fnukad 12-12-2007 ds ckn lsok;kstdksa dks deZdkj ij yxk;s x;s vkjksiksa dks fl) djus ds fy, lk{; nsus ds dbZ volj fn;s x;s ijUrq lsok;kstdksa dh vksj ls blds fo:) dksbZ lk{; izLrqr ugha dh x;h cfYd izkFkZuk i= 21n o 22n mDr okn dks LFkkukarj.k gsrq izLrqr fd;s x;s vkSj okn jkT; ljdkj }kjk Je U;k;ky; vkxjk ls okil ysdj bl U;k;kf/kdj.k dks vfHkfu.kZ; gsrq LFkkukarfjr fd;k x;k tks bl U;k;kf/kdj.k esa vfHkfu.kZ; fookn la&31@2011 ds :i esa iathd`r fd;k x;k vkSj mHk; i{kksa dks uksfVl Hksts x;sA lsok;kstd dh vksj ls bl U;k;kf/kdj.k esa viuh lk{; izLrqr djus ds ctk; izkFkZuk i= 29Mh bl vk'k; dk izLrqr fd;k x;k fd mijksDr okn esa lsok;kstd dh vksj ls fookn ls lacaf/kr lHkh O;fDr ftudh xokgh gks ldrh gSa lHkh ukSdjh NksM+ pqds gSa vkSj loZ Jh uUns'oj fxjh o foey dqekj tks'kh tks nks xokg gSa vkxjs esa jg jgs gSa muls xokgh gsrq lEidZ fd;k og xokgh nsus dks jkth Fks ijUrq mUgksusa vc euk dj fn;k blfy, muds lEeu tkjh dj xokgh gsrq ryc fd;k tk; vkSj lsok;kstd mu xokgksa dk [kpkZ pgu djus dks rS;kj gSaA bl izkFkZuk dk fuLrkj.k vkns'k fnukad 22-12-2011 ds }kjk fd;k x;kA rRi'pkr~ lsok;kstd dh vksj ls iqu% izkFkZuk i= fnukad 15-10-2012 yxHkx 11 ekg ds ckn isij ua-& 30Mh izLrqr fd;k x;k ftl ij vkns'k ikfjr fd;k x;k] ^^i{kdkjksa ds fy, lk{; ,d= djuk bl u;k;kf/kdj.k dk drZO; ugha gSA i=koyh ls izdV gksrk gS fd ;g fookn lsok;kstd lk{; ds fy, 25-3-2008 ls py jgk gSa ;fn lsok;kstd bruh yEch vof/k rd viuk lk{; izLrqr ugha dj ik;s rks blds fy;s ogh mRrjnk;h gSaA vkns'k fnukad 22-12-2011 Hkh iBuh; gSa vLohd`rA vkxkeh frfFk dks lsok;kstd vius leLr ekSf[kd lk{;h mifLFkr djsaxsA ysfdu fu;r frfFk dks lsok;kstd dh vksj ls iqu% ,d izkFkZuk i= fnukad 17-01-2013 xokg ryc djus gsrq izLrqr fd;k x;k ftl ij mHk; i{kksa dks lqudj vkns'k i=d ij foLr`r vkns'k djrs gq, lsok;kstd dh lk{; lekIr dh tkrh gSaA rRi'pkr~ lsok;kstd dh vkjs ls iqu% izkFkZuk i= 32Mh xokg ryc djus izLrqr fd;k x;k ftls fujLr fd;k x;kA 3- eSus i{kdkjksa ds fo}ku vf/kd`r izfrfuf/k;ksa dh cgl lquh vkSj i=koyh ij miyC/k lHkh vfHkys[kh; o ekSf[kd lk{; dk voyksdu fd;kA Jfed }kjk viuk c;ku iqu% U;k;kf/kdj.k ds le{k isij ua0 33lh fnukad 18-4-2013 dks vafdr fd;kA ftlesa ftjg ds nkSjku Jfed us dgk] ^^eq>s izfr"Bku }kjk vkjksi i= fn;k x;k] eSus dksbZ fMek.M ysVj ugha fd;k fQj dgk O;fDrxr rkSj ls dksbZ fMek.M ysVj ugha fn;k] ;g fMek.M ysVj leLr deZpkfj;ksa }kjk gLrk{kj djds fn;k x;k Fkk] ftl fMek.M ysVj ds ckjs esa eq> ij vkjksi yxk;s gSa ml ij esjs gLrk{kj Fks---------------og fMek.M ysVj fdl O;fDRk us cuk;k Fkk eq>s ugha ekywe] eSus ml fMek.M ysVj ij Jh jkts'k vxzoky ds dgus ij gLrk{kj fd;s Fks-------------eq>s ugha ekywe fd ftl fMek.M ysVj ij eSus gLrk{kj fd;s Fks mldh ckor dksbZ eqdnek dgha py jgk gSa ;k fopkjk/khu gS----------- og fMek.M ysVj 10&ch&2& ds dzekad 6 ij nkf[ky gSa bl ij dzekad 5 ij esjs gLrk{kj gSa blesa jkts'k vxzoky ds gLrk{kj dzekad 31 ij gS--------A** bl fMek.M ysVj ds voyksdu ls Li"V gS fd bl ij izfr"Bku ds 71 deZpkfj;ksa ds gLrk{kj gSa ftuesa ls loZ Jh uUns'oj fxjh ] foey tks'kh o jkts'k dqekj vxzoky ] Jh ,l0 ds0 diwj ds gLrk{kj gSa ysfdu buds }kjk Jfed ds fo:) dh xbZ ?kjsyw tkap esa ;g c;ku fn;k gSa fd Jh jktho 'kekZ }kjk tks uksfVl vkQ fMekUM fnukad 22-3-2003 dk lsok;kstdksa ij loZ fd;k x;k gS ftlesa esjs Hkh gLrk{kj fn[kk;s x;s gSa og gLrk{kj muds ,d dksjs dkxt ij djk;s x;s Fks mUgsa uksfVl vkQ fMek.M dh dksbZ tkudkjh ugha gS vkSj u mUgsa izca/kdksa ls dksbZ f'kdk;r gSaA mDr Jfedksa }kjk izcU/kdksa dks ,slk crk;s tkus ij gh lsok;kstd }kjk Jfed dks fuyafcr djrs gq, vkjksfir fd;k x;k vkSj izdj.k ds laca/k esa ,d fu'i{k tkap dk;Zokgh dh xbZA tks Je U;k;ky; }kjk ;g dgrs gq, vuqfpr o voS/kkfud ?kksf"kr dh xbZ dh tkap vkjksih deZpkjh ls ofj"B vf/kdkjh }kjk dh tkuh pkfg, u fd ckgjh O;fDr }kjk dh tkuh pkfg,A ;|fi lsok;kstd ds izekf.kr LFkk;h vkns'kksa esa fu"i{k tkap ds fy, tkap vf/kdkjh ckgjh O;fDRk dks cuk;s tkus dk izkfo/kku gSa og LFkk;h vkns'k lsok;kstd }kjk cgl ds nkSjku Hkh izLrqr fd;sA mDr fMek.M ysVj ds voyksdu ls ;g Li"V gSa fd bl ij Jh jktho 'kekZ dh dksbZ fMek.M vafdr ugha gS vkSj tks fMek.M lsok;kstd dks izLrqr dh gS og gksVy ds vU; deZpkfj;ksa ds laca/k esa gSA Jfed ds fo:) pkj vkjksi yxk;s x;s ysfdu lsok;kstd dh vksj ls dksbZ ,slh lk{; izLrqr ugha dh xbZA i=koyh dk voyksdu ls Li"V gS fd D;ksafd yxk;s x;s vkjksiksa esa ls dksbZ Hkh vkjksi dks lsok;ktd }kjk U;k;kf/kdj.k ds le{k fdlh vfHkys[kh; o ekSf[kd lk{; }kjk fl) ugh fd;k x;k gS vkSj ugh og i=koyh ij miyC/k rF;ksa ds vk/kkj ij iw.kZr% fl) gksrs gSaA vr% Jfed dh lsok;sa fnukad 7-10-2003 ls lekIr fd;k tkuk vuqfpr ,oa voS/kkfud gSA 4- mijksDr of.kZr ifjfLFkfr;ksa esa lUnfHkZr okn fcUnq dk mRrj bl izdkj fn;k tkrk gS fd lsok;kstdksa }kjk vius Jfed Jh jktho 'kekZ iq= Jh xksihpan 'kekZ &,Q-vks-,- xzsM 2& dh lsok;sa fnukad 7-10-2003 ls lekIr fd;k tkuk mfpr ,oa oS/kkfud ugha gSaA vr% Jfed lsok esa cgky gksus dk vf/kdkjh gSaA fdUrq mijksDr of.kZr ifjfLFkr;ksa esa Jfed lsok lekfIr dh frfFk ls bl vfHkfu.kZ; dh frfFk rd dk dksbZ Hkh osru ikus dk vf/kdkjh ugha gSaA rn~uqlkj vfHkfu.kZ; deZdkj ds i{k esa rFkk lsok;kstd ds fo:) ikfjr fd;k tkrk gSA**
12. By the impugned award, the respondent no. 1 rejected the claim of the respondent no. 2 for back wages on the ground that the respondent no. 2 could not establish that he was not in any gainful employment. However, the respondent no. 2 was directed to be reinstated in service.
13. In paragraph no. 55 of the writ petition the petitioners have quoted para 16(b) of the Standing order as under:-
"b) Workmen who have committed the misconduct will be inflicted upon with the punishment, charge-sheet has to be given to him, writing a recital of the specific misconduct, asking him within a reasonable time to state whether he wishes to take assistance of co-worker cross examine, any witness, documents in defence. If the workmen's explanation is not satisfactory then inquiry will be held by an officer superior to him."
14. In view of the clear provision in the aforequoted standing order, it is evident that if the workman's explanation is not satisfactory then enquiry will be held by an officer superior to him. The use of the word "will" clearly indicates that enquiry can be held only by an officer superior to the workman and not by an outsider.
15. Learned counsel for the petitioners has relied upon the judgment of Hon'ble Supreme Court in the case of Indian Telephone Industries Ltd. (supra) in which Hon'ble Supreme Court considered the provision of another standing order and held that there is no other prohibition about choice of the person to be appointed as an Enquiry Officer inasmuch as one or more than one person may be appointed as enquiry officer other than from security department. In the present set of facts, the standing order in question contains a specific provision that if workman's explanation is not satisfactory then enquiry will be held by an officer superior to him. The aforementioned position with regard to the standing order being subject matter of consideration by Hon'ble Supreme Court in the case of Indian Telephone Industries Ltd. (supra) is evident from paragraph no. 3 and 4 of the judgment which are reproduced below :
"3. Standing Order 16(2)(b) is as under :
16 Procedure for Punishment :- (1)(2)(a)(b) For major punishments listed in para 15.2 before disciplinary action amounting to postponement of annual increment for more than three months or reduction in the grade or revision or demotion to a lower grade or dismissal is taken, action on the following lines will be taken by the Manager :
(a) * * *
(b) On receipt of the explanation of the employee or on expiry of the time limit whichever is earlier or under special circumstances at the time of issuing the charge-sheet, the Manager shall appoint an Enquiry Officer or constitute an Enquiry Committee consisting of one or more than one person, other than from Security Department ...................."
4.It is clear from the above provision in the Standing Order that the requirement is to appoint an Enquiry Officer who is not from the Security Department. There is no other prohibition about choice of the person to be appointed Enquiry Officer in the above provision. The reason for excluding a person belonging to the Security Department is obvious. Such a person who is in the Security Department may have some interest in the successful conclusion of the domestic inquiry against the delinquent employee. His exclusion, therefore, is to eliminate the likelihood of any bias. Such a provision cannot be construed to mean that a person who is not even an employee in any other department and being an outside having no interest in the outcome of the domestic inquiry is also to be excluded. The view taken by the High Court is, therefor,e untenable.
16. For the reasons aforementioned, considering the specific provision of Clause 16(b) of the certified standing order in question, the judgment of Hon'ble Supreme Court in the case of Saran Motors Private Ltd. ( supra) is also distinguishable on the facts of the present case.
17. The reliance placed by the learned counsel for the petitioner on the judgment in the case of Management of National Seeds Corporation Ltd. Vs. K.V. Rama Reddy and the provision of Clause 16(e) of the certified standing order as quoted in para 61 of the writ petition shows that the workman will not have any right to be assisted by an outsider.
18. The findings recorded in the impugned award are findings of fact. Petitioners themselves could not adduce any evidence in support of charges leveled against the respondent no.2, even though, the date for evidence of the petitioners was being continuously fixed since 25th March, 2008 .
19. It is also relevant to note that this writ petition has been filed by the petitioner belatedly to challenge the impugned award dated 2th November, 2013 published on 21st May, 2014 and the order dated 7th October, 2012, without any proper explanation for delay.
20. There is another aspect. It is evident on record from the undated letter filed as Annexure No. 28 and the letter dated 27th January, 2015 of the petitioner ( Annexure No. 29) that the petitioners agreed to reinstate the respondent no. 2 which is the only relief granted by the impugned award to the respondent no. 2.. Learned counsel for the petitioner has also stated before this Court that the petitioners are agreed to comply with the award. Thus, there remains no grievance of the petitioner against the impugned award, inasmuch as, the petitioners are ready to reinstate the respondent no. 2 which is only relief granted in the impugned award. By the impugned award back wages has not been granted to the respondent no. 2. Under the circumstances, the petitioners cannot be allowed to take contrary stand by stating that on the one hand petitioners are ready to comply with the impugned award and on the other hand to challenge the award. Under the circumstances, the writ petition is itself not maintainable.
21. In view of the above discussions, the writ petition fails and is hereby dismissed.
Order Date :- 25.2.2015 Mukesh (Surya Prakash Kesarwani,J.)