Gauhati High Court
Smt. Rehena Begum vs The State Of Assam And 2 Ors on 21 July, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
WP(C) No. 6968/2013
SMT. REHENA BEGUM,
WIFE OF MD. SHAHJAHAN ALI,
RESIDING UNDER C/O. HANIF KHAN,
SIXMILE, DARANDA ROAD, HOUSE NO.122,
P.O. - KHANAPARA, GUWAHATI-22,
PS-DISPUR, DIST-KAMRUP, ASSAM.
...............Petitioner
- VS -
1. STATE OF ASSAM,
REPRESENTED BY THE SECRETARY TO THE
GOVT. OF ASSAM, LABOUR & EMPLOYMENT DEPARTMENT,
DISPUR, GUWAHATI - 6.
2. LABOUR COMMISSIONER,
ASSAM, GOPINATH NAGAR, GUWAHATI - 16.
3. MANAGEMENT OF GREEN FIELD TEA WAREHOUSE,
REPRESENTED BY ITS PROPRIETOR,
MONIRUL HASAN, RESIDENT OF HOUSE NO.31(N), JURIPAR,
BYE-LANE NO.3, PANJABARI, GUWAHATI-37, DIST.-KAMRUP,
ASSAM.
............Respondents
BEFORE THE HON'BLE MR. JUSTICE UJJAL BHUYAN Advocates for the Petitioner : Mr. NN Karmakar, Advocate.
Mr. S. Islam, Advocate.
Advocates for the Respondents : Mr. SN Sarma, Senior Advocate.
Mr. A Zahid, Advocate.
Mr. BJ Talukdar, Govt. Advocate.
Date of Hearing : 15.07.2015.
Date of Judgment : 21.07.2015.
WPC No.6968/2013 Page 1 of 11
Judgment & Order
Heard Mr. NN Karmakar, learned counsel for the petitioner and Mr. SN Sarma, learned Senior Counsel assisted by Mr. A Zahid, learned counsel for respondent No.3. Also heard Mr. BJ Talukdar, learned Govt. Advocate, Assam.
02. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to respondent No.1 to pass an order modifying the award dated 30.03.2013, passed by the learned Labour Court in Ref. Case No.2/2012 in accordance with the provisions of Section 17A of the Industrial Disputes Act, 1947.
03. Petitioner is the workman and respondent No.3 is the management.
04. An industrial dispute was raised, which ultimately led to issuance of notification by the appropriate Govt. i.e., the Govt. of Assam, Labour & Employment Department on 28.03.2012 making a reference to the Labour Court, Assam for adjudication of the following two issues: -
(i) Whether the management of Green Field Tea Warehouse, Panjabari, Guwahati-37, Dist-Kamrup (Assam) is justified in dismissing or discharging its workman, Smti. Rehena Begum from her service?
(ii) If not, is she entitled to be reinstated with full back wages and benefits or any other relief whatsoever as may be deemed fit and proper?
05. On receipt of the notification, Ref. Case No.2/2012 was registered and notices were issued to the parties. On receipt of notice, both the sides submitted their respective written statements.
06. Case of the workman as projected before the learned Labour Court was that the management had employed her to maintain accounts w.e.f. 14.11.1996. Initially she was paid Rs.1,000/- per month, which was subsequently enhanced to Rs.4000/- per month. Later she was required to work in the computer section and to maintain accounts. On 07.04.2010, she had requested the management to issue her formal appointment letter and to pay her monthly wages according WPC No.6968/2013 Page 2 of 11 to the pay scale as per settlement entered into between Guwahati Tea Warehousing Association and All Assam Tea Warehouse Workers' Association. Instead of paying heed to her request, false allegation was brought against her by the management that there were shortage of two bags of tea in the stock. The workman was show caused and was restrained from performing duties in the warehouse w.e.f. 30.04.2010. Workman submitted show cause reply on 03.05.2010. But, by order dated 20.05.2010, management discharged her from service. According to the petitioner, she was entitled to higher pay scale as per settlement entered into between Guwahati Tea Warehousing Association and All Assam Tea Warehouse Workers' Association. To deny her the due pay, formal appointment letter was never issued by the management to the petitioner and when she demanded that, she was discharged from service on false ground.
07. On the other hand, management contends that the workman was dismissed from service on 20.05.2010 because of her misconduct. She was appointed on 12.04.2010 and was paid her salary for the month of April, 2010.
08. In the course of the proceeding, the management side examined three witnesses while the workman examined four witnesses to support her case.
09. After hearing learned counsel for the parties and on perusal of the materials on record, learned Labour Court came to the conclusion that management had failed to establish the charge levelled against the workman. It was further held that management did not hold any valid domestic inquiry before terminating the service of the workman. Consequently, issue No.1 was answered by holding that management was not justified in dismissing or discharging the workman from her service. Following the above, issue No.2 was answered by holding that the workman was entitled to be reinstated in service with full back wages. On the claim of the workman that she was paid less amount than what she was entitled to, learned Labour Court was of the opinion that this was a matter to be considered by a separate forum and declined to grant her any relief on that count.
WPC No.6968/2013 Page 3 of 1110. By filing the present writ petition, petitioner seeks a direction to the respondent State to modify the award by exercising power under section 17A of the Industrial Disputes Act, 1947 (Act) so that she is paid her due salary.
11. Respondents have not filed any affidavit in this case.
12. Mr. Karmakar, learned counsel for the petitioner submits that the issue relating to higher wages to be paid to the petitioner was at the core of the dispute between the workman and the management. Workman had raised that dispute based on higher wages paid to similarly situated workman as per settlement entered into between the Guwahati Tea Warehousing Association and All Assam Tea Warehouse Workers' Association. When conciliation process was underway on this dispute, management abruptly dismissed the workman from service. Therefore, this was an issue which was required to be gone into by the learned Labour Court and failure to do so, has caused miscarriage of justice. He submits that to overcome such a situation, Legislature has provided Section 17A in the Act whereby, the State can intervene in an award passed by a Labour Court or by an Industrial Tribunal and modify the same. He, therefore, submits that this Court in the exercise of its power of judicial review may grant the relief as prayed for by the petitioner to do complete justice to the parties.
13. On the other hand, Mr. Sarma, learned Senior Counsel for respondent No.3 submits that it is quite strange that despite being successful in the litigation and despite the award being granted in favour of the workman, she did not accept the same and has, instead, instituted the present proceeding. When the award is in favour of the workman, there could be no justifiable reason to file the present writ petition. Referring to section 17A of the Act, he submits that reliance placed by learned counsel for the petitioner on the said section is wholly misplaced as the said section is intended to meet the exigencies of situation visualized by the said section, which has nothing to do with individual claims. Contending that there is no merit in the writ petition, he seeks dismissal of the same.
WPC No.6968/2013 Page 4 of 1114. Submissions made by learned counsel for the parties have been considered.
15. Considering that the writ petition has been filed by the workman even though the award is in favour of the workman, Court thought it fit to interact with the petitioner in person. Accordingly, petitioner appeared before the Court on 15.07.2015 and explained the circumstances leading to filing of the present writ petition, which have been mentioned in the order dated 15.07.2015.
16. Since the award dated 30.03.2013 has not been put to challenge by the management, therefore, it is considered not necessary to delve deep into the substance of the award. However, for effective adjudication of the case, relevant portion of the award is quoted hereunder: -
" 13. In view of the above, I find and hold that the management did not hold any valid domestic enquiry before terminating the service of the workman.
14. Let us now see whether the management is able to prove the charges levelled against the workman on merit.
From Ext.H show cause notice, it is seen that the concerned workman Rehena Begum as well as another workman Hitesh Deka were jointly charged with not delivering three bags of tea of garden Kesarbari and New Sonowal to two companies namely M/s. Golden Tea Company, Guwahati and M/s. Navayug Tea Company, Guwahati. Examined as DW-1 Manirul Hasan one of the partners of the management firm also stated in his evidence that the concerned workman Rehena Begum was asked to show-cause why she failed to deliver the tea to the aforesaid two companies. Then he contradict himself and says that on 28.04.10 the said workman failed to deliver two bags of tea of garden Kesarbari. On the other hand being cross-examined this DW-1 again contradicts himself and says that the concerned workman was removed for the allegation of commission of theft of two bags of tea leaves from the tea ware house. The above discussion as well as the contents of Ext. H show-cause notice issued to the concerned workman does not show that the concerned workman was charged with theft of two bags of tea leaves. DW-1 also admits that the theft was not reported to police. He does not explain why.
15. Coming to evidence of the workman side the concerned workman examined as WW-1 does say that the management issued show-cause notice to her and without giving opportunity of being heard she was dismissed from her service. There is however nothing in her evidence to suggest that she was charged with non-delivery of two or three bags of WPC No.6968/2013 Page 5 of 11 tea leaves or with theft of two bags of tea leaves by the management. During her cross-examination the management has not given any suggestion to her that she did not deliver two/three bags of tea leaves to some tea company/companies or that she committed theft of two bags of tea leaves.
16. In view of the discussion made above, I am of the considered opinion that the management has failed to establish the charge levelled against the workman on merit also.
Consequently, I find and hold that the management of Green Field Tea Warehouse, Panjabari, Guwahati-37, Dist- Kamrup (Assam) is not justified in dismissing or discharging workman Smt. Rehena Begum from her service.
The issue is decided accordingly.
17.Issue No.(ii) Now, the question is to what relief the workman is entitled to?
In 1987 (I) LLJ 114 the Hon'ble Apex Court held that- "If termination of service of the employee is not justified the employee is entitled to be reinstated in his service."
Hence, in view of the decision arrived at in respect of issue No.(i), I find and hold that workman Smt. Rehena Begum is entitled to be reinstated in her service.
18. In their evidence adduced for the workman side PW-3 Vidyananda Mishra and PW-4 Hitesh Deka- both former co- workers of concerned workman Smt. Rehena Begum have clearly said that the concerned workman is not working under any other management during the intervening period and their such claim is not disputed by the management during their cross-examination. On the other hand, the management witnesses have also not claimed during their evidence that the concerned workman so worked during the period. Thus, the evidence on record has satisfactorily established that the workman was not gainfully employed during the intervening period.
In view of the above, I find and hold that the concerned workman is entitled to full back wages.
In her W.S & evidence the concerned workman has claimed that the management paid her less amount than she was entitled to and so she has claimed an amount on that count. However, in my considered view the said claim of the concerned workman is a matter to be considered by a separate forum under separate section of law. And hence, this Court is unable to grant her any relief on that count.
19. From the above, it is found and held that the management of Green Field Tea Warehouse, is not justified in dismissing/discharging workman Smt. Rehena Begum from her service and that she is entitled to be reinstated in her service with full back wages."
WPC No.6968/2013 Page 6 of 1117. Since the learned counsel for the petitioner has placed reliance on section 17A of the Act, the same is extracted hereunder: -
" 17-A. Commencement of the award-(1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under section 17:
Provided that--
(a) if the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or
(b) if the Central Government is of opinion, in any case where the award has been given by a National Tribunal, that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days.
(2) Where any declaration has been made in relation to an award under the proviso to sub-section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under section 17, make an order rejecting or modifying the award, and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government.
(3) Where any award as rejected or modified by an order made under sub-section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under sub-section (2) is made in pursuance of a declaration under the proviso to sub-
section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in sub-section (2).
(4) Subject to the provisions of sub-section (1) and sub- section (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under sub-section (1) or sub-section (3), as the case may be."
WPC No.6968/2013 Page 7 of 1118. A careful reading of the provisions of Section 17A would show that an award shall become enforceable on the expiry of 30 days from the date of its publication in terms of section 17 of the Act. However, if the appropriate Govt., in this case the State Govt., is of the opinion that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Govt. may by notification in the official gazette declare that such award shall not become enforceable on the expiry of the said period of 30 days. After such declaration is made, the appropriate Govt. may within 90 days from the date of publication of the award under section 17 make an order rejecting or modifying the award and shall on the first available opportunity lay the award together with a copy of the order so passed before the Legislature of the State. After it is laid before the Legislature, such award shall become enforceable on the expiry of 15 days. Therefore, from an analysis of the aforesaid provisions, it is quite evident that the appropriate Govt., in this case the State Govt., gets the jurisdiction to interfere with an award of the Labour Court if it forms an opinion that giving effect to the award, either wholly or in part, will be inexpedient on public grounds affecting national economy or social justice.
19. What are public grounds affecting national economy or social justice have not been defined in the Act. But what can be understood from the said expression is that the appropriate Govt. may not give effect to an award or a part of it, if it is of the opinion that it will be inexpedient on public grounds affecting national economy or social justice. Public grounds affecting national economy or social justice are macro concepts and cannot be linked to an individual claim of a workman. To invoke its power by the State Govt. under section 17A of the Act, the award must be such that it has the potential to disrupt the finances of the State or hamper dispensation of social justice.
20. Keeping in mind the object behind section 17A of the Act, the claim of the petitioner may now be examined. As already noticed above, the reference has been answered in favour of the petitioner by holding her dismissal to be illegal and directing her reinstatement. Petitioner wants higher wages to be paid to her by the management. The reference was made to the learned Labour Court on two issues, firstly, whether management was justified in dismissing the workman WPC No.6968/2013 Page 8 of 11 and secondly, if it was not held to be so then whether the workman was entitled to be reinstated with full back wages. It goes without saying that the Labour Court while deciding a reference has to confine its adjudication to the issues referred to it by the appropriate Govt. It cannot deviate from the issues referred to and decide an issue, which is not referred to it for adjudication. It cannot enlarge the scope of the reference. Claim of higher wages by the petitioner was not an issue referred to for adjudication before the learned Labour Court by the appropriate Govt. In that view of the matter, learned Labour Court was justified in declining to go into this aspect of the matter. In any case, this is a claim of an individual workman. In the light of the decision given by the learned Labour Court, it cannot be said by any stretch of imagination that if such a decision is given effect to, it will be inexpedient on public grounds affecting national economy or social justice. Therefore, on this ground, the claim of the petitioner cannot be entertained.
21. There is one more aspect to this issue. Provisions of section 17A of the Act have been held to be unconstitutional by the Andhra Pradesh High Court in Telugunadu Workcharged Employees State Federation Vs. Government of India, reported in MANU/AP/0699/1997 : 1997 (3) ALT 492. This decision has been followed by a Division Bench of the Madras High Court in Union of India Vs. Textile Technical Tradesmen Association, reported in (2014) 4 LLJ 683 (Mad) : MANU/TN/2006/2014. In the said decision, the Andhra Pradesh High Court has held as under: -
" The Constitution has assigned the Courts the function of determining as to whether the laws made by the legislature are in conformity with the provisions of the Constitution. In adjudicating the constitutional validity of the statutes, the Courts discharge an obligation which has been imposed on them by the Constitution. The Courts would be shirking their responsibility if they hesitate to declare the provisions of a statute to be unconstitutional, even though those provisions are found to be violative of constitutional scheme or the provisions. In view of what is stated supra and as I have come to the clear and unmistaken conclusion that the impugned provision encroaches upon the judicial power of the State, as it violates the basic concept of rule of law and democratic pattern envisaged by the Indian Constitution, unhesitatingly, I strike down the impugned provision as being ultra vires the WPC No.6968/2013 Page 9 of 11 Constitution and consequently the provision contained under Sec.17(2) of the Act to the extent of the words "subject to the provisions of Section 17-A" and whole of Section 17-A with sub- sections 1 to 4 thereof are non-est under law. As an inevitable corollary, G.O.Ms. No.2, Labour Department, dated 20.1.1994 is quashed as being unsustainable in view of what is held above. Now, the award which has been published in G.O.Rt.No.2761, Women's Development, Chief Welfare and Labour Department, dated 23.12.1993 shall be operative and the same be implemented by respondents 3 to 5 within a period of one month from the date of receipt of a copy of this order."
22. Proceeding further, the Madras High Court referred to the provisions of Article 226 (2) of the Constitution of India and the decision of the Hon'ble Supreme Court in Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr., reported in (2004) 6 SCC 254 and held that the Industrial Disputes Act, 1947 is a parliamentary legislation and if any of the High Courts declare a provision of the parliamentary legislation as unconstitutional, the said decision would be applicable throughout the territory of India. An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final, keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India will have effect throughout the territory of India, subject of course to the applicability of the Act. Accordingly, section 17A of the Act has been held to be unconstitutional and unenforceable. In Kusum Ingots & Alloys Ltd. (Supra), the Hon'ble Supreme Court has held that if a High Court has the requisite territorial jurisdiction having regard to the provisions of Article 226 (2) of the Constitution, an order passed by such High Court on the constitutionality of a parliamentary Act will have effect throughout the territory of India.
23. A Division Bench of the Karnataka High Court in Shiv Kumar Vs. Union of India, reported in AIR 2014 Kant 73 considered a similar issue and held that pronouncement on the constitutionality of a provision of a central Act by the Kerala High Court would be applicable throughout India.
24. I am in respectful agreement with the views expressed by the Madras High Court as well as by the Karnataka High Court and the decision of the Andhra Pradesh High Court in the case of Telugunadu Workcharged Employees State Federation (Supra). Both Andhra Pradesh High Court and Madras High WPC No.6968/2013 Page 10 of 11 Court have held the provisions of section 17A of the Act to be unconstitutional which will have effect throughout the territory of India.
25. In the light of the above, the prayer made by the petitioner seeking a direction to the appropriate Govt. to modify the award dated 30.03.2013 by exercising the power under section 17A of the Act is wholly untenable inasmuch as the said provision has been held to be unconstitutional and unenforceable by the Andhra Pradesh High Court and reaffirmed by the Madras High Court as discussed above. Therefore, no such direction can be issued.
26. For all the aforesaid reasons, relief sought for by the petitioner cannot be acceded to. Accordingly, writ petition is dismissed.
27. However, dismissal of the writ petition will not come in the way of enforcing the award dated 30.03.2013 and grant of relief to the petitioner in terms of the said award. If the petitioner has any further grievance as noticed in the award dated 30.03.2013, it will be open to her to raise such grievance before the appropriate forum in accordance with law.
Judge BIPLAB WPC No.6968/2013 Page 11 of 11