Andhra HC (Pre-Telangana)
Apsrtc, Hyderabad vs Presiding Officer, Addl. Industrial ... on 22 July, 1999
Equivalent citations: 1999(5)ALD52, 1999(4)ALT702
ORDER
1. This wit petition is filed questioning the award of the Additional Industrial-cum-Additional Labour Court (for short the 'Tribunal') dated 2-12-1998 made in ID No.22/97 published in G.O. Rt. No.2395, dated 31-12-1998 as illegal and to quash the same.
2. The A.P. State Road Transport Corporation (for short the 'Corporation') is aggrieved by the said award, whereunder it was directed to appoint the 2nd respondent-workman afresh as driver after verifying the genuineness of the driving licence submitted by him.
3. This Court on 30-4-1999 ordered notice before admission. Today when the matter came up for admission the learned Counsel appearing for the 2nd respondent has addressed his arguments. I have heard the learned Standing Counsel for the petitioner and the learned Counsel appearing for the 2nd respondent. Both the learned Counsel consent for disposal of the writ petition at the admission stage.
4. A few facts which are necessary for disposing of the writ petition are as follows : The 2nd respondent was appointed as a driver in the petitioner-Corporation on 27-10-1986. He was regularised in the service on 20-10-1987. The Depot Manager, Kukatpally removed him from service on 27-6-1989 after framing charges and conducting enquiry. The charge against the workman related to the production of forged driving licence by the workman. Aggrieved by the order of dismissal the workman filed an appeal to the Divisional Manager, which was dismissed on 31-8-1989. A further revision to the Regional Manager was also dismissed in the year 1992. Thereafter the respondent did not move any authority and after a lapse of five years filed a petition under Section 2-A(2) of the Industrial Disputes Act (for short the 'Act') seeking to set aside the departmental enquiry and for reinstatement into service with back wages. Before the Tribunal the workman filed a memo under Section 11-A of the Act stating that the workman is not disputing the procedural aspect in conducting the domestic enquiry. Therefore before the Tribunal the workman requested to consider the question of punishment imposed by the Corporation. The Tribunal marked Ex.W1 for the workman and Exs.M1 to M10 for the management and came to a conclusion that the charges levelled again the workman are proved and the finding recorded by the enquiry officer is correct.
5. The Tribunal considered the question of punishment imposed after recording the finding of guilt on the part of the workman. The Tribunal came to a conclusion that the punishment of removal imposed on the workman is harsh and disproportionate to the alleged misconduct and taking into consideration the fact that the criminal case filed against the workman in CC No.259 of 1990 on the file of the Additional Judicial First Class Magistrate, Hyderabad (West and South) ended in acquittal and also the fact that after the appointment he worked more than 2 1/2 years without any blemish, held that the punishment of removal imposed on the workman is harsh. That portion of the award passed by the Tribunal reads as follows:
"The fact that the respondent Corporation has appointed the petitioner as Driver without verifying his driving licence, the fact that he was allowed to drive the vehicle for a considerable period of 2 years 6 months without valid licence and the fact that he had acquired valid licence to drive heavy passenger vehicle much earlier than his suspension and submitted by him through Ex.M5 explanation and also the fact that there is no allegation of any accident in his 2 years 6 months period of service, I am of the view that ends of justice would be met, if the petitioner is considered for appointment afresh as driver."
6. Aggrieved by the award of the Tribunal directing reinstatement of the workman into service as a driver afresh after verifying the genuineness of the licence submitted by him, the Corporation filed the present writ petition. In the writ petition the petitioner-Corporation challenges the impugned award mainly on three grounds -
firstly the Corporation urges that the Tribunal ought not have entertained the Industrial Tribunal under Section 2-A(2) of the Act after a lapse of five years from the date of the order passed by the original authority; secondly when such a serious misconduct is committed by the workman viz., producing the forged driving licence depriving the another genuine driver for a job, the Tribunal ought to have taken serious view of the matter and dismissed the petition; and thirdly the exercise of power by the Tribunal under Section 11-A of the Act is not proper and is not in accordance with the settled principles for exercise of the discretion under Section 11-A of the Act.
7. The learned Counsel appearing for the 2nd respondent-workman submits that the criminal case against the workman ended in acquittal on merits, but not on technical grounds. After his appointment the workman worked for more than 2 1/2 years and did not involve in any accident. However, it is submitted that after joining duty in the service of the Corporation the workman obtained another licence initially for driving a light motor vehicle and later for driving heavy motor vehicle. Taking these into consideration the Tribunal has exercised discretion and the same cannot be interfered with by this Court under Article 226 of the Constitution of India.
8. The points that arise for consideration in this writ petition are (1) whether the Tribunal is not correct in entertaining the industrial dispute after a lapse of five years; and (2) whether the Tribunal committed any error in exercising the discretion under Section 11-A of the Act.
9. Point No.1 :--It is a fact that the workman's efforts to avail departmental remedies ended in the year 1992. He waited for about five years and did not approach any authority, muchless the Tribunal. He filed ID No.22/97 only in the year 1997.
The contention of the learned Standing Counsel for the Corporation is that the delay on the part of the workman is very fatal and therefore the Tribunal ought not to have exercised its power. On the other hand the learned Counsel appearing for the 2nd respondent-workman submits that entertaining the industrial dispute by the Tribunal even after a lapse of five years has not caused any prejudice to the management and therefore the same is not fatal. Further it is contended that no evidence is let in before the Tribunal. In fact there is no such contention raised and no issue was framed by the Tribunal as to the effect of delay in approaching the Tribunal. Therefore, according to the learned Counsel for the 2nd respondent, the delay by itself is not a bar for the Tribunal to adjudicate the industrial dispute.
10. In Ajaib Singh v. Sirhind Co-op, Mktg.-cum-Processing Service Society Ltd., , recently the Supreme Court reviewed the entire case law on the question of delay in approaching the industrial Tribunal. While holding that the provisions of Article 137 of the Limitation Act do not apply to the reference of a dispute to the Labour Court/Industrial Tribunal, the Supreme Court held as follows:
"It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the Tribunal, Labour Court or Board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages."
11. In Ajaib Singh's case (supra) the Supreme Court also found fault with the Punjab & Haryana High Court which quashed the award of the Industrial Tribunal on the ground of delay, saying that there was no specific plea before the High Court about the delay it was wrong on the part of the High Court to have adverted to the issue of delay without there being a proper pleading. Therefore this Court would not be justified to further probe into this matter especially when the issue of delay was not raised before the Industrial Tribunal. Hence on Point No.1 it is to be held that the delay of five years is not fatal and it is not a bar for the Industrial Tribunal to pass the impugned award.
12. Point No.2 :--Before the Tribunal admittedly the workman filed a memo under Section 11-A of the Act stating that he is not disputing the procedural propriety in conducting the domestic enquiry. Therefore it was actually not necessary for the Tribunal to record the finding that the charge levelled against the workman is proved and the finding recorded by the enquiry officer is correct. What was important before the Tribunal was whether there are mitigating circumstances for awarding lesser punishment than removal from service. As mentioned above the Tribunal took into consideration mainly two aspects - one being the clean acquittal in criminal case and the other being unblemished record as a driver after joining the Corporation. The fact that the workman has also crossed 40 years of age is one of the circumstances, this Court takes into consideration in upholding the award of the Tribunal.
13. The learned Counsel for the petitioner has placed reliance on a judgment of this Court in C. Ameer Saheb v. APSRTC, 1997 (3) ALD 625, and submitted that when the driver secured appointment by producing a forged document (forged driving licence) and if such person is terminated after giving notice, the same cannot be held to be illegal. I have gone through the judgment rendered by my learned Brother the Hon'ble Sri Justice Y. V. Narayana. With great respect the judgment cited is not applicable to the facts of the case on hand.
14. For the above reasons, the writ petition fails and is accordingly dismissed. No costs.