Bombay High Court
Firth (India) Steel Co. Ltd. vs Industrial Court And Ors. on 8 January, 1988
Equivalent citations: (1994)IIILLJ469BOM
JUDGMENT H.W. Dhabe, J.
1. This is a writ petition arising out of the proceedings under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946 (for short the B.I.R. Act). Briefly the facts are according to the petitioner-employer, the conditions for laying off its employees existed in its factory at Nagpur in October 1982, for which the permission of the Assistant Labour Commissioner, Nagpur, as required by Section 25(m) of the Industrial Disputes Act, 1947 (for short the I.D. Act) was sought. However, the said permission was refused by him by his order dated 9.12.1982, which order in the absence of any further challenge was final. It is the case of the petitioner that there was an oral understanding between the petitioner and the elected representatives of the employees, according to which instead of paying the workers without work, they were to be given cleaning work in the factory. Accordingly the petitioner gave the cleaning work to the employees who were to be laid off. It is the case of the petitioner that all the employees including the supervisory foreman etc., accepted the offer and accordingly did the cleaning work but the respondent No. 3 refused to do the same and even refused to accept memos relating to the same.
2. It appears that on certain days when the work was offered and was refused by the respondent No. 3, the petitioner issued charge-sheet to him on the ground that his refusal to obey the instructions was an act of misconduct covered by the standing orders. The acts of misconduct alleged against the respondent No. 3 were as follows:
i. Refusal to obey the instructions of the shift foreman to carry out the alternate work;
ii. Refusal to accept memos issued for such disobedience of the instructions;
iii. To remain absent from the place of work for carrying out the jobs assigned, meaning the alternate jobs.
Initially, without holding any domestic enquiry, the respondent No. 3 was dismissed from service. After the said order was challenged before the Labour Court, the petitioner reinstated him in service and held the domestic enquiry against him. It is after holding the domestic enquiry against the respondent No. 3 that a fresh order of dismissal was issued on 8.7.1983.
3. The respondent No. 3 challenged the aforesaid order of dismissal dated 8.7.1983 by preferring an application under sections 78 and 79 of the B.I.R. Act before the Labour Court. Apart from challenging the conduct of the domestic enquiry itself, the respondent No. 3 submitted that none of the acts of misconduct alleged against him was a misconduct within the meaning of the standing orders and that the offer of an alternate employment constitutes an illegal change within the meaning of Section 46 of the B.I.R. Act. The petitioner by its written statement contested the claim made by the petitioner in his application. The parties led evidence before the learned Labour Court Nagpur. The learned Labour Court, Nagpur, on the basis of the evidence on record held that the acts of misconduct alleged against the respondent No. 3 were not the misconducts within the meaning of the standing orders. It also held that the petitioner had committed an illegal change ml issuing the impugned dismissal order dated 8.7.1983 against the respondent No. 3. It, therefore, directed the petitioner to withdraw the said change forthwith and reinstate the respondent No. 3 with full back wages and continuity of service. The petitioner challenged the aforesaid order of the learned Labour Court by filing an appeal in the Industrial Court but without success. Feeling aggrieved, the petitioner has preferred the instant writ petition in this Court.
4. The learned counsel for the petitioner has at the outset raised a contention that Section 25(m) of the Act is unconstitutional being violative of Articles 14 and 19(1)(g) of the Constitution of India and is, therefore, liable to be struck down. The constitutional validity of the said provision is challenged because, according to the petitioner, in its absence, it was open to it to lay-off its employees, including the petitioner without seeking permission of the Competent Authority, and if so, laid off, it was not open to the respondent No. 3 to refuse its offer for alternate employment. The submission thus is that in such an eventuality if the offer of alternative employment is not accepted by the respondent No. 3 it would amount to disobedience of the lawful and reasonable order of the employer within the meaning of the standing orders. All these submissions are urged in view of the findings rendered by the learned Courts below that in the absence of the permission from the Competent Authority under Section 25(m) of the I.D. Act, the petitioner was bound to offer his usual work to the respondent No. 3 and haying forced him to do some other work, which was not as per the contract of employment, the petitioner has committed an illegal change. The learned counsel for the petitioner has also urged before me that even otherwise, the order directing the respondent No. 3 to do alternate work was legal and valid and his refusal to obey the said order would amount to disobedience of lawful and reasonable order of the employer. The learned counsel for the petitioner has then sought to justify the order of dismissal on the other charges viz., the refusal of the respondent No. 3 to accept the memos issued to him in regard to such disobedience of the instructions and for remaining absent from the place of work for carrying out the alternate jobs assigned to him.
5. It may be seen that it is well-settled that unless it is absolutely necessary to do so, the High Court would not pronounce upon the constitutional validity of any provision of an enactment. The first question to be considered, therefore, is whether it is absolutely necessary to examine the constitutional validity of Section 25(m) of the I.D. Act. In this regard, it may first be seen that the petitioner is seeking to challenge the constitutional validity of Section 25(m) in a co-lateral proceeding regarding the dismissal of the respondent No. 3 although when the permission for laying off its employees was itself refused by the competent authority under Section 25(m) of the I.D. Act. Such refusal was not challenged by the petitioner in this Court by raising the question of its constitutional validity.
6. Even assuming that it is open to the petitioner to challenge the constitutional validity in this co-lateral proceeding, in my view, in the facts of this case, it is not necessary to decide the same because, according to me, even assuming that Section 25(m) was not there, as I would presently show, it was still not open to the petitioner to assign to the respondent No. 3 the work which was not commensurate with his status and was not similar to the nature of duties performed by him, with the result that such an order if given would not be lawful, much less reasonable within the meaning of the standing orders. I, therefore, hold that it is no necessary for me to decide the question of the constitutional validity of Section 25(m) of the I.D. Act in these proceedings.
7. Before considering the question whether the order directing the respondent No. 3 to do the cleaning work was an order which was lawful and reasonable within the meaning of the standing orders, it is necessary to notice that admittedly the respondent No. 3 was a permanent employee employed as a highly skilled employee and was the furnacing foreman first hand under whom there were others working. By reference to the Explanation to Section 25(m) it is urged that if alternative employment is offered to an employee, then he would not be deemed to be laid off for the purpose of Section 25(m) and, therefore, no permission of the competent authority would be necessary so as to make such lay-off legal. The submission again is that if there is no lay-off within the meaning of Section 25(m), it is open to the petitioner to offer the respondent No. 3 any alternative work which he is bound to do. It is, however, urged on behalf of the respondent No. 3 that the Explanation itself contemplates that if there is a valid lay-off with permission as contemplated therein, then only an offer of alternative employment can be made. Again I do not feel in the facts of the instant case that it is necessary to interpret for the purposes of the instant case the Explanation to Section 25(m) on the basis of the rival submissions made by the parties because as already pointed out above, whether there is lay-off or not, the employer cannot offer such alternative work to an employee which is not commensurate with his status and the nature of work which he is performing as per the contract of employment.
8. It may be seen that even in making an offer of alternative employment in the case of lay-off also, the alternative employment cannot mean any employment which the employer offers. The use of the expression "alternative" itself shows that the employment offered to the employee concerned must be a suitable employment which in other words would mean the employment which is commensurate with his status and the nature of his duties. The bracketed clause after the expression "alternative employment" is merely illustrative and cannot affect the requirement that the employment offered must be a suitable employment. In this regard I may usefully refer to the decision of the Division Bench of this Court in Vithaldas v. Mansukhlal, 1980 M.L.J. 612 in which the expression "alternative" is similarly interpreted in the context of the expression "alternative accommodation" occurring in Clause 13(3)(v) of the Rent Control Order. Thus, in any view of the matter, whether there is a lay-off or not, it is not open to the employer to offer such an employment to his workmen which is not commensurate with his status or the nature of duties performed by him.
9. The learned Labour Court has found that under the Explanation to Section 25(m) of the I.D. Act what is contemplated is that the employer can make an "offer" of alternative employment which would mean that it is open to the employee whether to accept or to refuse such employment and in case the employee refuses such an employment, the result would be that he may be deprived of his compensation for lay-off but his refusal to accept the offer of alternative employment would not constitute any act of misconduct. There is some force in the above view taken by the learned Labour Court. However, as already stated above, it is not necessary for me to interpret the said Explanation in the instant case.
10. Turning now to the question whether the cleaning work offered to its employees by the petitioner is commensurate with the status and the nature of the duties performed by the respondent No. 3, it is not in dispute that the respondent No. 3 was as per the contract of employment employed as a highly skilled employee and was working as a furnacing first hand at the relevant time. As regards the cleaning work sought to be assigned, it is the case of the petitioner that the cleaning work consisted of removing shrubs and grass in the factory and according to the respondent No. 3, the work that he was asked to do was of removing the earth. In my view whether the work was of removing the earth, it was clearly manual work performed by coolies and mazdoors which cannot be said to be consistent with the status of the respondent No. 3 who was a highly skilled employee. Merely the fact that some other supervisors or foremen were doing the said work would not mean that the respondent No. 3 should have also done the said work. The said work, therefore, cannot be said to be an alternative employment within the meaning of the Explanation to Section 25(m) if it was applicable, and if it was not applicable, tne case was still the worst because normally the petitioner could assign him the work as per the contract of employment in the absence of which he could be transferred or required to do the work of identical nature. If the work assigned to the respondent No. 3 was not commensurate with the status and the nature of his duties, it was open to him to refuse to do such work because the order of the employer directing him to such a work was then neither lawful nor reasonable. As pointed out above, the misconduct under the standing order is one of disobedience of the lawful and reasonable order and since the order directing the respondent No. 3 to do the manual work was not lawful and reasonable, no misconduct was committed by the respondent No. 3 in refusing to obey such an order. The finding rendered by the learned Courts below in this regard deserves to be upheld.
11. As regards the alleged misconduct of refusing to accept the memos issued for disobedience of the aforesaid instructions regarding the assignment of jobs and also as regards the alleged misconduct of refusing to accept the order of dismissal, it is urged that it is a major misconduct under the standing orders for which the penalty of dismissal could be legitimately imposed. The learned Industrial Court has considered the question relating to their misconducts in para 15 of its impugned order. It is held, by it that for these misconduct alleged to be committed on 20.12.1982, 27.12.1982 and 28.12.1982 the punishment was already imposed upon the respondent No. 3 and, therefore, the punishment of dismissal could not be imposed upon him for the same. The submission on behalf of the petitioner in that regard is that no punishment as such as contemplated by the standing orders was imposed upon the respondent No. 3 but he was marked absent only without pay for the aforesaid days. Be that as it may, in my view, even assuming that the refusal to accept the memos issued by the employer is a misconduct under the standing orders, the major penalty of dismissal from service could not have been imposed upon him for the same because even for major misconduct, a lesser or mild punishment of stoppage of increment is provided under the standing orders. The penalty of dismissal was thus clearly highly disproportionate to the above misconduct alleged against the respondent No. 3 and in fact by itself it would show that it was a cogent evidence of victimisation. The above contention on behalf of the petitioner in regard to the aforesaid charge of misconduct, therefore, deserves to be rejected. It may be seen that had there been no charge of disobedience of lawful and reasonable order of the employer, merely on the basis of the above misconduct the respondent No. 3 could not and would not have been dismissed from service.
12. As regards the third charge there is also no merit in the same because, admittedly the factory was closed and in fact his usual work was not offered to the respondent No. 3 by the petitioner. The third charge is really on offshoot of the first charge because according to it, the respondent No. 3 remained absent from the place of work for carrying out the jobs assigned to him as the alternative jobs. If the offer of alternative jobs itself was not lawful and reasonable, no action could be taken against the respondent No. 3 for remaining absent from the place of work for doing such jobs because, admittedly the factory was closed and his usual work could not have been offered to the respondent No. 3. At any rate, the respondent No. 3 could not have been dismissed from service on the basis of the above charge of misconduct. The finding of the learned Courts below in this regard, therefore, deserves to be upheld. As the acts of misconduct complained of against the respondent No. 3 was not the misconduct within the meaning of the standing orders or otherwise, the impugned order of dismissal was liable to be set aside and the respondent No. 3 were entitled to the normal reliefs of reinstatement with full back wages. In fact, I am informed that the respondent No. 3 has been actually reinstated in service.
13. The last question which is urged on behalf of the petitioner is that there was no illegal change committed by the petitioner within the meaning of Section 46 of the B.I.R. Act and, therefore, the declaration given by the learned Labour Court that the petitioner has committed an illegal change within the meaning of Section 46 of the B.I.R. Act in dismissing the respondent No. 3 from service deserves to be set aside. The learned counsel for the respondent No. 3 has stated before me that although the prosecution for illegal change was instituted against the petitioner for not withdrawing the illegal change as per the declaration granted under Section 46, the said prosecution is withdrawn by him and no further criminal prosecution for the same would be launched by the respondent No. 3. Since the criminal prosecution for not withdrawing the illegal change under Section 46 of the B.I.R. is withdrawn and the same would not be launched in view of the above statement made by the learned counselfor the respondent No. 3, it is not necessary for me to decide the contention in regard to the question whether the action of dismissal of the respondent No. 3 amounts to illegal changes within the meaning of Section 46 of the B.I.R. Act.
14. However, the fact remains that if the dismissal of an employee is illegal and is contrary to the standing orders, it is liable to be set aside and the petitioner is entitled to the relief of reinstatement with full back wages and continuity of service under section 78-D of the B.I.R. Act irrespective of the question whether such dismissal amounts to an illegal change within the meaning of Section 46 of the B.I.R. Act or not. The order of setting aside the dismissal of the respondent No. 3 and granting him reinstatement with full back wages and continuity in service made by the learned Labour Court was, therefore legal and proper. It is thus not necessary to decide the question whether the act of dismissal of the respondent No. 3 from service constituted an illegal change within the meaning of Section 46 of the B.I.R. Act.
15. In the result, the instant writ petition fails and is dismissed. However, in the circumstances of the case, there would be no order as to costs in this writ petition.