Allahabad High Court
Kribhco Fertilizers Limited vs Oswal Chemicals And Fertilizers Ltd. ... on 9 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 2802
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 18 Reserved A.F.R. Case :- WRIT - C No. - 6200 of 2019 Petitioner :- Kribhco Fertilizers Limited Respondent :- Oswal Chemicals And Fertilizers Ltd. And Another Counsel for Petitioner :- Bhanu Bhushan Jauhari Counsel for Respondent :- C.S.C.,Ajit Kumar Singh Chauhan,Bhupendra Nath Singh Hon'ble J.J. Munir,J.
1. The petitioner, Kribhco Fertilizers Limited, have impugned an award of the Labour Court, U.P., Bareilly, dated 06.09.2018 (published on 22.12.2018) in Adjudication Case no.21 of 2017. By the award aforesaid, the Labour Court has held dismissal from service of eight workmen of the petitioner to be unlawful and illegal, and ordered their reinstatement in services with full back-wages. The eight workmen were dismissed by orders of different dates passed by the petitioner in exercise of powers under Clause 45.0.0 of the Oswal Chemical and Fertilizers Limited, Standing Orders. These Standing Orders have been certified by the competent authority, under the Industrial Employment (Standing Orders) Act, 1946. The aforesaid Standing Orders shall be hereinafter referred to as the Standing Orders. The eight workmen were dismissed by the petitioner without holding inquiry by invoking the Special Procedure in Certain Cases, provided for under Clause 45.0.0 of the Standing Orders. The workmen, who have been dismissed from service, were represented before the Labour Court by the first respondent, Union through their General Secretary, J.B. Singh, who is also one of the dismised workmen. Before this Court also, therefore, the eight workmen have been impleaded through the Employees' Union, called Oswal Chemicals and Fertilizers Limited Karmchari Sangh.
2. It would be appropriate to depict in tabular form the particulars of workmen, who have been dismissed by orders of different dates. The dates of the relative orders of dismissal are also shown. The eight workmen of the petitioner whose interest before this Court is represented by the first respondent, Union, are hereinafter referred to as the ''workmen' wherever the reference is collective; individually, they would be referred to by their names. These particulars are depicted thus:
Sr. No. Name of the Workmen Designation Date of Dismissal from Service Date of Birth
1.
J.B. Singh Assistant (Secretary of Union) 10.06.2009 13.08.1970
2. Shamsher Chand Security Guard 18.06.2009 02.05.1958
3. Rakesh Mishra Security Guard 27.06.2009 10.03.1970
4. Radhey Shyam Security Guard 26.06.2009 10.11.1954
5. Jang Bahadur Yadav Security Guard 16.06.2009 02.11.1972
6. Vijay Prakash Shukla Security Guard 26.06.2009 10.01.1958
7. V.K. Rajpoot Fireman 16.06.2009 15.10.1972
8. Sushil Kumar Mishra Fireman 27.06.2009 10.02.1978
3. The record shows that suo motu action was taken by the State Government to make a reference of an industrial dispute on 10.06.2010, in exercise of powers under Section 4 of the U.P. Industrial Disputes Act, 1947 (for short, the Act), relating to the aforesaid dismissal of the petitioner's workmen. The reference aforesaid was made to the Labour Court, Rampur, where it was registered as Adjudication Case no.32 of 2010. The reference was made in the following terms (in Hindi vernacular):
"क्या सेवायोजक द्वारा अपने श्रमिक श्री जंग बहादुर यादव पुत्र श्री राम नरेश यादव को दिनांक 16.6.2009, श्री बी०पी० शुक्ला पुत्र श्री ब्रह्मदत्त शुक्ला को दिनांक 26.6.09, श्री राधेश्याम सिंह पुत्र श्री एम०पी० सिंह को दिनांक 24.5.09, श्री राकेश मिश्रा पुत्र श्री आर०के० मिश्रा को दिनांक 27.5.09, श्री जे०बी० सिंह पुत्र श्री बी०के० सिंह को दिनांक 10.6.09, श्री शमशेर सिंह पुत्र श्री दीवान चन्द्र को दिनांक 16.6.09, श्री सुशील कुमार मिश्रा पुत्र श्री सूरजपाल को दिनांक 27.6.09 तथा श्री वी०के० राजपूत पुत्र श्री होती लाल राजपूत की दिनांक 16.6.2009 से सेवायें समाप्त किया जाना उचित एवं वैधानिक है। यदि नहीं तो सम्बन्धित श्रमिकगण क्या वितनाम / अनुतोष पाने का अधिकारी है, एवं अन्य किन विवरणों सहित।"
4. Summons were issued on 17.07.2010 to both parties. It may be emphasized here again that before the Labour Court, the workmen were represented by the first respondent, Union, whose name also figures in the reference order as one party to the industrial dispute. The course of proceedings taken in this case also indicate that much later the case was transferred from the Labour Court, Rampur to the Labour Court, Bareilly under a Government Order 29.08.2017. It was registered afresh before the Labour Court, U.P., Bareilly as Adjudication Case no.21 of 2017.
5. Something needs to be said about the identity of the petitioner also. According to the petitioners' case, the petitioners who are a Company duly incorporated under the provisions of the Companies Act, 1956, were incorporated as M/s. Kribhco Shyam Fertilizers Limited. By that name, the Company was incorporated on 08.12.2005. It is engaged in the manufacturing of Chemical Fertilizers and Agro Products. The said company has its unit, a Urea & Ammonia Manufacturing Plant at Village Pipraula, District Shahjahanpur. The aforesaid company was incorporated with the Registrar of Companies for the National Capital Territory of Delhi and Haryana. Subsequently, the name of Kribhco Shyam Fertilizers Limited was altered to Kribhco Fertilizers Limited. The aforesaid change was brought about with the issue of a certificate of incorporation dated 3rd June, 2017, issued in terms of Rule 29 of the Companies (Incorporation) Rules, 2014. It is, thus, the renamed company aforesaid, and incorporated afresh by that name, who are the petitioners. It also requires mention that another company, Bindal Agro Chemical Limited, was a company duly incorporated under the provisions of the Companies Act, 1956. The company last mentioned was incorporated in the year 1981. It was engaged in the manufacture of chemicals fertilizers and agro products. This company, that is to say, Bindal Agro Chemical Limited had its Urea and Ammonia Manufacturing Plant at Village Pipraula, District Shahjahanpur. This plant has since been purchased by the petitioner. Bindal Agro Chemical Limited changed name to Oswal Chemicals and Fertilizers Limited, in the year 1995, as the petitioners assert. The petitioners further assert that the employees of Oswal Chemicals and Fertilizers Limited formed an Employees' Union in the name of Oswal Chemicals and Fertilizers Limited Karmchari Sangh, District Shahjahanpur. After the petitioners purchased the Urea and Ammonia Manufacturing Plant from the erstwhile Bindal Agro Chemical Limited, on 14.08.2006, through a registered sale deed, the Oswal Chemicals and Fertilizers Limited Karmchari Sangh, District Shahajahanpur, became privy to the petitioners. It is the aforesaid Employees' Union who are espousing the cause of the eight workmen who are their members, one of them being their General Secretary. The said Union is impleaded as respondent no.1 to the petition.
6. Reverting back to the dispute, that has given rise to proceedings before the Labour Court, the facts of it all are best discernible from the rival versions of an occurrence dated 03/ 04.06.2009, that took place at the premises of the petitioners, at about 1.30 a.m., with a repeat event at 4.30. It is claimed to be an attack by a mob of the petitioners' workmen on the premises of the manufacturing plant of the company at Pipraula, leading to extensive damage of the company's property. It is also claimed that in the said attack, the residential quarters of its officers were attacked by a riotous mob of employees, led by the Union leaders, that is to say, the leaders of the first respondent, including its office bearers.
7. The rival versions about this occurrence figure boldly in the two written statements, that were filed by the petitioners and the first respondent, espousing the cause of the workmen. The details of pleadings and evidence before the Labour Court filed by both sides would be described a little later in this judgment.
8. According to the case of the workmen, represented by the first respondent, as given out in their written statement is to the effect that the petitioners are a manufacturing establishment engaged in the production of urea and chemical fertilizers. They employ about 350 workmen. The first respondent are an Employees' Union, who are active in the establishment of the petitioners manufacturing plant in order to safeguard the interest of workmen, employed there. The first respondent-Union are affiliated to some All India Organization of Unions, described as the CITU.
9. It is indicated about the workmen individually that Jang Bahadur Yadav was appointed on 04.05.1996 as a Security Guard, V.P. Shukla was appointed on 25.03.1996 also as a Security Guard; likewise, Radhey Shyam was appointed on 08.12.1996 in the same capacity, Rakesh Mishra was appointed as Security Guard on 23.12.1995, whereas J.B. Singh was appointed on 10.04.1997 as a Helper, Shamsher Chandra was appointed on 10.04.2000, again as a Security Guard; Susheel Kumar was appointed on 13.09.2003 as a Fireman, and, V.K. Rajpoot was also appointed as a Fireman, on 15.01.1996.
10. It is first respondent's case that all these workmen were office bearers of the Union's General Body. They would espouse from time to time any just cause of their fellow workmen. It is the further case of the first respondent that on account of the activities of the workmen in raising just demands on behalf of others, that the petitioner management harboured malice and ill-will towards each of them. The petitioners would act with bias vis-a-vis the workmen, and would often harass them. It is the first respondent's further case that the petitioner management wanted to run the establishment in an obdurate and tyrannical fashion, and to that end, it is the petitioners' policy to suppress Union's activities and penalize their leaders. The first respondent-Union had raised certain demands through a letter dated 04.08.2008, related particularly to casual hands before the petitioners, of which the District Administration and the Labour Department had been given information. The said demands and problems were pending consideration before the petitioners, but no action was taken thereon. In the meanwhile, casual hands and those engaged through labour contractors were not paid wages for a period as long as three months. On that account w.e.f. 29.05.2009, workmen undertook a hunger strike for an indefinite period. The strike was called by casual hands, and the first respondent, in support of those demands had staged a dharna. The petitioner management were desperate about the picketing workmen. The petitioner management for the purpose abating the dharna drafted help of the civil and police administration. It was pleaded by the first respondent before the Labour Court that the Standing Orders have been framed without the consent of the workmen or their Union. The first respondent have castigated the petitioner management of going against the provisions of the Standing Orders, about which they made an ego issue.
11. It is the first respondent's case that while the first respondent, Union and its office bearers were extending their support to the striking casual hands and contract labourers, on 03.06.2009 in the night hours, the civil administration and the police acting at the behest of the petitioners, resorted to illegal action against the striking workmen. They forcibly removed them from site where the hunger strike had been organized in order to bring about a forced dissipation of that strike. In the same sweep of action, Sethpal Singh, Bhagwan Singh, J.B. Singh, V.K. Rajpoot and Jang Bahadur Yadav, were dismissed from service on 10.06.2009, without serving them with a show cause notice, or calling for their explanation, much less holding a domestic inquiry. Shamsher Chandra, V.P. Shukla, Radhey Shyam, Rakesh Mishra and Susheel Mishra, had already been suspended. They were dismissed from service on 18.06.2009, 26.06.2009, 26.06.2009, 27.06.2009 and 27.06.2009, in that order, again without holding any disciplinary inquiry.
12. It has been pleaded on behalf of the workmen by respondent no.1 that the motivated nature of the action taken against them is evident from the fact that they were dismissed from service on ground, amongst others, that the workmen entered the Officers' Colony where they attacked the Officers of the petitioners. Lateron, two workmen, Sethpal Singh and Bhagwan Singh, were reinstated in service, even though the charges levelled against the two reinstated workmen and the workmen are the same. It is pleaded that this action of the petitioners renders the punishment awarded to the workmen void. It is also pleaded that in the charge sheet, dated 14.03.2009, false charges have been levelled against J.B. Singh, who is the General Secretary of the first respondent-Union. Disciplinary inquiry on the basis of the charge sheet dated 14.03.2009 also commenced, but early into the proceedings, the petitioners realized that they would not be able to prove the charges. As such, the inquiry was abandoned. It is also pleaded that through the various letters issued to the workmen, they have been arbitrarily dismissed from service without a proper order being made, and without holding any disciplinary inquiry, or calling for their explanation. The petitioners' action is, thus, in violation of labour laws. It is also urged by the first respondent that the show cause notice and the dismissal orders issued to the workmen carry charges that are baseless, false and vague. The entire proceedings taken by the petitioners are in violation of the principles of natural justice. It is also the first respondent's case that the petitioners have misused their authority to dismiss the workmen, which they did by resort to breach of faith in the manner that assuring them of reinstatement, they secured letters of apology from the workmen, but went back on the assurance by turning down their letters of apology. It is also said that the conduct of the petitioners renders their action all the more bad, inasmuch as, similarly circumstanced workmen, Sethpal Singh and Bhagwan Singh, have been reinstated in service; the workmen being charged on identical allegations ought to have been reinstated, likewise. It is also pleaded that the workmen ever-since their dismissal have been jobless with no source of income.
13. The petitioners on the other hand put forward their case before the Labour Court through a written statement bearing paper no.15A, wherein it is pleaded that the workmen were employed with the petitioners. It is said that the services of the workmen are governed by the certified Standing Order, that is in force. It is certified under the Industrial Employment (Standing Orders) Act, 1946 by the Additional Labour Commissioner, Bareilly. The workmen have been dismissed from service as a measure of punishment under Clause 45.0.0 (b) and (c) of the Standing Order. Each of the workmen were involved in acts of rioting, damaging the company's property, entering the residential quarters of the Officers of the Company, where they resorted to destruction of property, abusing the Officers and their family members. It is pleaded that there is a prima facie case against the workmen of causing physical harm to Senior Officers and their family members. As such, the company in accordance with Clause 45.0.0 (b) of the certified Standing Orders did not find it to be a fit case to hold a disciplinary inquiry. It is pleaded on behalf of the petitioners that on 04.06.2009, the workmen and their companions congregated at the Gate of the colony, and did not permit any Officer/ Employee to proceed to work. Thereupon, the petitioners called in aid the District Administration who abated the obstruction by the workmen and their companions. It is also the petitioners' case that this act of the workmen led to a dreadful situation because in the absence of Officers and workmen from duty, consequent upon prevention as aforesaid, the unattended industrial plant could have led to any operational disaster.
14. A letter was issued to J.B. Singh and Bhagwan Singh bearing no.7/2009, dated 02.06.2009, by which strike by the employees was announced? The workmen and their companions caused an atmosphere of fear to prevail in the premises of the industrial plant, on account of which no man was prepared to stand witness against them. A First Information Report was lodged against the workmen under Sections 147, 149, 336, 344, 452, 427, 504, 506 IPC, wherein after investigation a charge sheet was filed before the Chief Judicial Magistrate, Shahjahanpur by the police. It was also the petitioners' case before the Labour Court that the workmen and their companions on a widespread scale misbehaved with the Officers and their family members, that prevented anyone from testifying against them. This led the petitioners to form an opinion that it was not necessary to hold an inquiry against the workmen, and to proceed against them under Clause 45.0.0 of the certified Standing Orders in order to dismiss them from service as a measure of punishment. It was also pleaded that under Clause 37.0.0 of the certified Standing Orders, there is provision for an appeal against punishments awarded. The workmen invoked the aforesaid provision and submitted a mercy appeal to the Managing Director of the petitioners, wherein J.B. Singh and all the other workmen admitted their guilt, requesting reinstatement in service on compassionate grounds. The Appellate Authority after considering all relevant aspects of the matter declined to accept the workmens' appeal, and affirmed the order of punishment.
15. Before the Labour Court, the petitioners and the workmen also filed their rejoinder statements replying to their respective written statements. The respondent-Union filed documentary evidence through a list, paper no.27B(2), whereas the petitioners filed their documents through two lists, papers nos.23B(1) and 42B(1).
16. The respondent-Union examined in support of their case J.B. Singh as their witness. After his deposition-in-chief, he was thoroughly cross-examined by the petitioners' authorized representative. On behalf of the petitioners, one Hitesh Kulshreshtha and another V.K. Shukla tendered their deposition-in-chief on affidavit. These witnesses were cross-examined by the workmens' authorized representative.
17. The Labour Court while rendering the impugned award has elaborately set out the parole evidence of witnesses on both sides about the occurrence, in between the paraphrased version of which, it has considered the different propositions of law urged on both sides, together with the authorities cited. All the various contentions that have been mentioned by the Labour Court in the award impugned do not require attention of record, except those on which the event before the Labour Court has turned.
18. The Labour Court proceeded to its conclusions on the first principal premise that is admitted to both sides: that the petitioners- employers before imposing the major punishment of dismissal from service, did not hold any inquiry into the misconduct imputed to the workmen. It was held that before imposing a major punishment, it was imperative for the petitioners to have undertaken a domestic inquiry; just asking the workmen whether they wanted to apologise and their doing so would not lead to an inference of guilt. In this connection, the Labour Court depended upon an authority of this Court in Mangal Sen vs. State of U.P. and another1.
19. The contention of the petitioners' representative before the Labour Court was that the role of J.B. Singh and the seven other workmen, who are his companions, is different from Sethpal Singh and Bhagwan Singh, because J.B. Singh was leading the belligerent mob, wherein the remainder of seven workmen were supporting him; that is not the case with Bhagwan Singh and Sethpal Singh. The Labour Court opined that the occurrence is one dated 03/04.06.2009, in two events at 1.30 a.m. and 3.15 a.m. In the said occurrence, all the ten workmen have a similar role assigned, with identical allegations against them to found their orders of dismissal. However, Sethpal Singh and Bhagwan Singh, who were involved along with the workmen, were opined by the Labour Court on a perusal of the facts on record to bear a role identical to that of the workmen. It was held that once the petitioners on identical charges against Bhagwan Singh and Sethpal Singh, reinstated them in service, the eight workmen whose cases were referred to the Labour Court's adjudication, present a case on the petitioners' part of practicing a policy of hostile discrimination.
20. It was brought to the notice of the Labour Court, on behalf of the petitioners that the workmen, along with the two reinstated, in the criminal prosecution launched against them, were convicted by the Additional Chief Judicial Magistrate, Shahjahanpur vide judgment and order dated 20.10.2014, and sentenced to various terms for the offences found proved. All of them appealed to the Sessions Judge, where their appeal was allowed in part upholding the conviction, but modifying the sentence to a suspended servitude, by putting the workmen and the two others reinstated, on probation for a period of one year to maintain the peace and be of good behaviour. It was, therefore, urged on behalf of the petitioners that convicted workmen could not be reinstated in service by the petitioners.
21. The Labour Court repelled the aforesaid contention of the petitioners, again on the same premise that if the workmen were convicted offenders, so were the two reinstated ones, Sethpal Singh and Bhagwan Singh. The Labour Court held that there is no provision under the U.P. Industrial Disputes Act, which says that a convicted man cannot be reinstated in service. It was remarked by the Labour Court that the judgment of conviction passed by the Criminal Court would not come to aid of the petitioners, in resisting reinstatement. The Labour Court concluded that charges against the two reinstated employees and the workmen were identical. The fact that Bhagwan Singh and Sethpal Singh were reinstated whereas the workmen were not, reflected a policy of discriminatory treatment by the petitioners. On this finding, the Labour Court held that the various dismissal orders passed against the workmen are not lawful or proper. The Labour Court further awarded that all the eight employees are entitled to be reinstated in service, with continuity and back-wages.
22. Aggrieved, the present writ petition has been filed by the petitioners.
23. Heard Sri Bhanu Bhushan Jauhari, learned counsel for the petitioner and Sri B.N. Singh, learned counsel for the respondent-workman.
24. It is argued by Sri B.B. Jauhari, learned counsel for the petitioners that the impugned award is bad in law on various counts, and is liable to be quashed as an instance of manifestly illegal exercise of powers by the Labour Court. He submits that the petitioners-Employers have exercised their powers to punish under Clause 45.0.0 of the certified Standing Orders, that postulate contingencies where the management can exercise its disciplinary jurisdiction to punish, without holding a departmental inquiry. It is urged that the Labour Court has not at all examined the issue whether the petitioner-employers exercised their powers on relevant considerations under Clause 45.0.0 (supra), which the Labour Court had to test on the basis of evidence, that was before it, together with all other record. No finding on the said issue has been returned by the Labour Court, in the submission of Sri Jauhari.
25. It has been further submitted that the action taken by the petitioners to punish invoking Clause 45.0.0 is one in keeping with the seriousness of the misconduct committed by the workmen, and going by the nature of duties assigned to them. The fact that for acts of misconduct, in respect of which the workmen were punished by the petitioners under Clause 45.0.0 led to their conviction in the criminal trial also, fortifies the factual foundation, on which the petitioners have proceeded. It is also submitted by the learned counsel for the petitioners that the different treatment meted out to the two workmen who were spared punishment of dismissal is evident from the written statement filed before the Labour Court, where the nature of the job of the workmen, and the two who were not punished, has been detailed to justify the different treatment. It is submitted by the learned counsel for the petitioners that the Labour Court went broadly by the fact that charges against the two workmen who were spared punishment and the workmen were identical, and that all of them were convicted by the Criminal Court. The inference of discriminatory treatment drawn by the Labour Court has missed out on considerations that were differential in the case of the workmen and the two, who have not been punished.
26. It is pointed out that the workmen who have been dismissed are security personnel and firemen, except J.B. Singh, whereas the two spared are assistants, who are office hands. It is pointed out further that the Labour Court has also not considered the fact that of the eight workmen, three, that is to say, Shamsher Chandra, Radhey Shyam and Vijay Prakash Shukla, had already reached the age of superannuation. Details of each of the workmen were available to the Labour Court, in the same manner as mentioned in paragraph 14 of the Writ Petition. The Labour Court without application of mind to these facts with reference to three of the workmen, has awarded reinstatement with full back-wages.
27. It is also argued by Sri Jauhari that the impugned award made by the Labour Court is beyond the scope of reference, inasmuch as, in the reference made, there is absolutely no mention of the fact that reinstatement of the two workmen for the same misconduct, shows discrimination by the petitioners against the workmen. It is urged that unless there was reference in specific terms relating to practice of discrimination, it was not open to the Labour Court to hold dismissal of the workmen unlawful, on the said ground. It is also submitted by the learned counsel for the petitioners that there was a total breakdown of command and control on the date of occurrence, inasmuch as, security personnel and firemen took the law in their own hands by acts of intimidation, violence leading to destruction of property, acts threatening superior officers, their family members and loyal workmen of the petitioners with bodily injury. In those circumstances, it cannot be said that the power under Clause 45.0.0 was arbitrarily exercised. He has emphasized that discipline is of prime concern to security personnel, as well as personnel in the fire department. The workmen, however, charged with those vital responsibilities grossly misconducted themselves by indulging in acts of violence and destruction, which imminently deserved invocation of Clause 45.0.0 of the Standing Orders. In the circumstances obtaining that were writlarge on the evidence before the Labour Court, it has concluded in manifest error, that the petitioners ought to have conducted an inquiry before punishing the workmen.
28. It is also highlighted by Sri Jauhari that even if for argument's sake it is presumed that the power to punish with dismissal from service, dispensing with inquiry was invoked in error by resort to Clause 45.0.0 (supra), the Labour Court while rendering the impugned award failed to apply its mind to the fact that the workmen have been convicted for the same acts, in a duly constituted criminal trial. It has failed to apply mind to the fact that such convicted workmen were not fit to be reinstated in service; and certainly not with full back-wages. Sri Jauhari has castigated the award of the Labour Court on account of non-consideration of the confirmed conviction of the workmen, while ordering reinstatement with full back-wages as unjustified, arbitrary and illegal. He has further impressed upon this Court that no employer can be forced to reinstate workmen who have been found guilty of offences punishable under Sections 452, 147, 336, 341, 427 and 506 IPC, by a Court of criminal jurisdiction. Taking his submission further on the issue, he urges that these offences involve model turpitude. Men convict of these offences cannot be permitted to work in an industrial establishment. He has argued further that merely because two other convicted men were reinstated, one of whom is still continuing in service, no relief on the basis of "equality before law" could be granted to the workmen. He has emphasized that the time tested principle is that parity cannot be drawn from a wrong. The reinstatement of the two other workmen, who were also subsequently convicted along with the workmen, might be a wrong decision of the petitioners, but that would not entitle the workmen to claim relief pleading it as discrimination.
29. Sri B.N. Singh, learned counsel appearing on behalf of respondent no.1 espousing the workmens' cause has submitted that the workmen were dismissed without conducting a domestic inquiry as provided vide Clause 32a.0.0, and, particularly, Clause 35.0.0 of the Certified Standing Orders. Clause 35.0.0 last mentioned, provides a complete procedure for the imposition of punishment that is a major penalty. The entire procedure according to Sri B.N. Singh has been given a goby, without valid cause or justification. It is urged that Clause 33.0.0 carries a list of acts and omissions numbering 113, that would constitute misconduct, in respect of which disciplinary proceedings may be drawn. There is a complete mechanism for the petitioners to deal with any of those enumerated acts or omissions constituting misconduct, in accordance with Clauses 35.0.0 to 35.7.0, all of which have been arbitrarily ignored to impose a major punishment. It is urged by the learned counsel for the first respondent that there was a continuing agitation to take back the workmen in service, of which the State Government took cognizance, in order to maintain industrial peace and avoid industrial unrest, once negotiation between the employers and workmen had failed. It was to remedy the aforesaid situation that the Government referred the matter as an industrial dispute to the Labour Court, Rampur, which lateron came to be transferred to the Labour Court at Bareilly.
30. Sri B.N. Singh, learned counsel for the first respondent submits that the Labour Court went into evidence, both oral and documentary, led on behalf of parties and returned a finding that two similarly circumstanced workmen, Sethpal Singh and Bhagwan Singh were reinstated by the petitioners, without assigning any special reasons or peculiar circumstances to do so, whereas the workmen were not. It was, therefore, held by the Labour Court that the workmen were discriminated against. It was also recorded that ten workmen were put on trial for the same acts of misconduct, and all ten were convicted and sentenced to various terms by the learned Additional Chief Judicial Magistrate, Shahjahanpur. On appeal filed by the ten workmen to the Sessions Judge, sentence of imprisonment was modified and all of them were released on probation of good conduct for a period of one year. It is emphasized by the learned counsel that this aspect has been considered by the Labour Court at pages 33 and 34 of the paper book, carrying the impugned award. The fact that the Labour Court has considered this aspect has not been disputed by the petitioners, or shown to be incorrect and based on no evidence. It is, therefore, in the submission of the learned counsel, a finding of fact based on evidence that cannot be disturbed by this Court.
31. It is pointed out that in paragraphs 7, 9, 11, 12, 13, 15, 17 and 19 of the counter affidavit, correct facts have been detailed relating to the incident, that have not been denied in the rejoinder. It is, in addition, urged on behalf of respondent no.1 that the writ petition is not maintainable, as the eight affected workmen who are beneficiaries of the award, have not been impleaded as party respondents to the writ petition. They are necessary parties. In their absence, the writ petition is bad for non-joinder of necessary parties. It has been emphasized much by Sri B.N. Singh, that in paragraph 9 of the counter affidavit, it has been specifically asserted that Sri V.K. Shukla and Sri A.K. Dixit, who were officials of the company, were not residing in the factory premises, but living in the colony at a distance 1 - 2 kilometers. If any incident took place in the colony, away from the precincts or the premises of the factory, it would be an incident outside the place of work, which could not be taken cognizance of as misconduct under the Certified Standing Order. Thus, the hasty action of the management in dismissing the workmen from service, citing an incident that took place outside the factory premises is ultra vires the authority of the management under the Certified Standing Orders. The entire action is mala fide, and amounts to victimization of the workmen. It has been asserted in paragraphs 11 and 12 of the counter affidavit that the petitioner-employers had entered into an agreement with the daily-wages workmens' Union, which was not abided by, by the petitioners. The daily-wages workmen Union and its members were demanding implementation of that agreement, by the Employers. Respondent no.1 had extended support to their cause. It is on that account alone, that the Employers have falsely implicated the workmen, who are members of the Union, in a false criminal case. It is for the same reason that without any opportunity of hearing, they have dismissed the workmen on different dates, invoking Clause 45.0.0 of the Standing Orders. In doing so, they have acted in violation of Articles 14 and 21 of the Constitution.
32. It is also urged on behalf of respondent no.1 that in para 14 ''Ka' ''Kha' of the written statement filed by the respondent-Union (at pages 121 and 123 of the writ petition) it is categorically stated that the workmen concerned, Shamsher Singh, V.P. Shukla, Radhey Shyam Singh, Rakesh Kumar Mishra and Susheel Kumar Mishra, were suspended and charge-sheeted by the petitioners after the incident, whereas the other five workmen, including Sethpal Singh and Bhagwan Singh, were not suspended or charge-sheeted ever. However, orders of dismissal from service were passed against each of them. These workmen were allowed to discharge their duties, till the order of dismissal from service came to be made and received salary for the said period of time. It is urged that in meting out this differential treatment, the petitioners' act constitutes unfair labour practice as defined under Section 2(ra) read with Schedule V, Paras 5(a), (b), (c), (d), (g) of the Industrial Disputes Act, 1947.
33. It is also urged on behalf of respondent no.1 that resort to unfair labour practice has been prohibited under Section 25U, and made punishable under Section 25T of the Industrial Disputes Act, 1947. The action of the Employers in suspending and charge sheeting five workmen, while differentially treating five others, who were not disturbed till orders dismissing them from service were passed, besides the act of the petitioners in reinstating Sethpal Singh and Bhagwan Singh, constitutes unfair labour practice on the foot of the discrimination practiced. It is argued as a facet of this submission that Sethpal Singh is an Ex-President of the Union whereas Bhagwan Singh, is the President of the first respondent, Union, in office. There was, thus, no reason to distinguish the case of the workmen, in particular, respondent no.1, who is the General Secretary of that Union, and Bhagwan Singh. The fact that a differential treatment has been meted out, constitutes unfair labour practice, as defined in para 9 of Schedule 9 to the Industrial Disputes Act. It is submitted that discrimination for a fact has been held to have been practiced by the Labour Court on the basis of a conclusion, that is drawn from relevant evidence. The said finding is in no way perverse, but plausible. As such, it calls for no interference by this Court in exercise of jurisdiction under Article 226 of the Constitution. It has been argued further by Sri B.N. Singh, that the Employers have not produced any oral evidence to prove charges before the Labour Court, which was an opportunity available to them to substantiate the misconduct claimed against the workmen. This the petitioners ought to have done, as they have dismissed the workmen from service for acts constituting alleged misconduct, without holding a domestic inquiry. They could, by leading evidence in support of the charges, substantiate the same before the Labour Court. They could have also led evidence to show as to how the case of the Ex-President, Sethpal Singh and President of the first respondent-Union, Bhagwan Singh, was different from that of the workmen. That also was not done. This abstinence by the Employers leads to a clear inference of victimization of the workmen, as learned counsel submits.
34. It is submitted by the learned counsel for the first respondent that the petitioner-Employers, have taken no plea with regard to loss of faith and confidence. It was never urged on their behalf to be framed as a point, no evidence was led, and no finding was, therefore, recorded by the Labour Court on the issue of loss of faith and confidence. The said issue having not been raised before the Labour court cannot be raised before this Court. In support of his contention on this score, Sri B.N. Singh has placed reliance upon a decision of the Delhi High Court in Management of Delhi Transport Corporation, New Delhi vs. Ram Kumar and another2, where speaking for the Division Bench, it was held by Rajindar Sachar, J. (as the Learned Chief Justice then was) in paragraph 12 of the Report, thus:
"13. We must also emphasise that the ipse dixit of the management that it has lost confidence in the workman is not a mantra of charm which can be used at management's pleasure to deny the normal relief of reinstatement to a workman even when the dismissal has been found to be unjustified. The plea of loss of confidence must have some rational relation to the fact that the employee had misused his position of trust and rendered it undesirable to retain him in service. The cases where reinstatement was refused related to the special relationship of a stenographer attached to an employer as in the case of (1970) 1 Lab L J 63 (SC) (Ruby General Insurance Co. vs. Chopra; or Hindustan Steel Ltd. v. A.K. Roy (1970) 1 Lab L J 228: (1970 Lab I C 1166) (SC)) where it was found undesirable to retain a person in service because of the recommendation of the Senior Security Officer based on verification report of the police that it would not be desirable to retain him in service particularly when the workman was employed in a blast furnace, a crucial part of the work with respect to which the workman had been employed. Mr. Malhotra tried to make capital by referring to the past record of the respondent workman from which it appears that he was previously warned or censured for some dereliction of duties. But this record is of no consequence because it is apparent that notwithstanding these warning it was not considered improper or hazardous to continue with the service of the employee. But for the present disciplinary proceeding the employer was apparently satisfied that continuance of the workman was not hazardous or risky for the establishment. If that be so then how can it be urged with any justification that even when the charges have not been established the workman should be penalised by being denied his normal right of reinstatement on the vague and unsubstantiated plea of loss of confidence.
"Loss of confidence in the integrity of an employee should be substantiated by cogent evidence before the Labour Court. If a workman is entitled as a general rule to be reinstated after his wrongful dismissal is set aside stated and on the facts it is not possible to find cogent material on which the establishment can genuinely be considered to have lost confidence in the integrity of the workman, he is entitled to be reinstated." See (1971) 1 Lab L J 233: (1971 Lab I C 1235) (SC), Management of Panitole Tea Estate v. Workmen."
35. Sri B.N. Singh has further placed reliance on a decision of a Division Bench of this Court in State of U.P. vs. Ganesh Kumar and another3, to urge that the punishment of dismissal from service is shockingly disproportionate to the misconduct, particularly, when the workmen in this case at some stage, may be by contrivance of the Management had accepted their guilt, and pleaded for mercy. It is pointed out by Sri Singh that in State of U.P. vs. Ganesh Kumar and another (supra), the misconduct charged against the respondent, a Constable with the Provincial Armed Constabulary, 28th Battalion P.A.C., Etawah, was that on being called to Headquarters, he appeared in an inebriated condition. In the medical examination, it was verified that he had consumed alcohol. Accordingly, disciplinary proceedings were initiated against him under Rule 14(1) of the U.P. Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. During inquiry, he accepted his guilt and submitted that he was upset due to the death of two of his brothers, and prayed for mercy. In that case, the Tribunal (which appears to be a reference to the U.P. Public Services Tribunal, from the report of the decision) set aside the punishment of dismissal from service awarded by the Disciplinary Authority, and directed reinstatement in service with 25% back-wages. Upon a writ petition by the Employers challenging the Tribunal's judgment, a Division Bench of this Court went into the question of proportionality of punishment, and after a reference to two other decisions, involving misconduct of a similar kind, in one case by a Constable Driver in the CRPF, held the award to be just and legal. Learned counsel for the first respondent placed reliance on this decision to say that in the totality of circumstances, the petitioners are entitled to extension of the same treatment - if not the same treatment, the same mercy - as that extended to the two similarly circumstanced workmen, Sethpal Singh and Bhagwan Singh. Certain other authorities have also been relied upon by Sri B.N. Singh, on the various grounds that he has urged in support of the award, which shall be duly considered during the course of this judgment.
36. This Court has given a thoughtful consideration to the rival submissions, which on both sides have been advanced by the learned counsel with their usual felicity of expression, and unsparing industry.
37. A perusal of the impugned award does show that the Labour Court has not at all examined the question as to validity of the exercise of disciplinary powers by the petitioners, without holding an inquiry, taking resort to Clause 45.0.0 (b) and (c) of the Standing Orders. A perusal of the various orders of dismissal, compendiously annexed as Annexure 15 to the writ petition, would show that in case of J.B. Singh, the Disciplinary Authority has exercised powers under sub-clause (c) of Clause 45.0.0 last mentioned, whereas in cases of other workmen, the power has been exercised under sub-clause (b) & (c) of Clause 45.0.0 of the Certified Standing Orders. Clause 45.0.0 of the Standing Orders is extracted below:
"45.0.0 SPECIAL PROCEDURE IN CERTAIN CASES:
Not with standing anything contained therein the disciplinary Authority may impose any of the penalties.
(a) If an employee has been convicted on a Criminal charge or conclusions arrived at by a judicial trial.
(b) If the management believes or suspects that an employee particularly on holding a position of confidence, has betrayed that confidence. But such belief or suspicion of the employee should not be a mere whom or fancy. It should be bonafide and responsible.
(c) If an employee has been found guilty of very serious kind of misconduct such as sabotage, firing or attempting murder or manhandling or attempting physical resorts to senior official in industrial premises and on the strength of facts domestic enquiry is not required. The workman who is adjusted by the management on examination of the facts to be guilty of such misconduct is liable to be summarily dismissed."
38. Acts constituting misconduct have been very elaborately detailed in the Certified Standing Orders, in two parts. In Clause 27.0.0 and its various sub-clauses, it has been spelt out about the behaviour & conduct and certain other matters that a workman has to adhere to. In Clause 33.0.0 and its various sub-clauses, numbering a 113 are detailed as specific acts and omissions, that constitute misconduct. Of these, sub-clause (15) of Clause 33.0.0 of the Standing Orders, reads thus:
"33.0.0 ACTS & OMISSIONS CONSTITUTING MISCONDUCT:
Without prejudice to the general meaning of the terms misconduct and indiscipline, the following acts and omissions, shall inter-alia, constitute specific acts of misconducts on the part of a workman.
(15) Assaulting or threatening or manhandling or intimidating or abusing or insulting or behaving in an indisciplined manner with any officer or employee of Establishment or his family members, whether within the establishment or work or estate premises or outside, whether on duty or otherwise for any reason, whatsoever."
(Emphasis by Court)
39. The Labour Court has spontaneously remarked that the Employers ought to have held a domestic inquiry before imposing a major penalty. It was not enough for them to ask whether the workmen wished to apologize, and further that from their letters expressing apologies, hold them to be guilty. The approach of the Labour Court appears to be fundamentally flawed, because on the facts on record, the Employers never resorted to the routine procedure of holding a domestic inquiry, which is otherwise provided for in case a major punishment is to be imposed. The said procedure is provided for under Clause 35.0.0 of the Certified Standing Orders. It is, indeed, a very detailed procedure with all opportunity to the workman to offer his defence, and for him to be heard, before a decision of drastic consequence is taken. Clause 45.0.0 is engrafted as an exception to the normal rule of holding domestic inquiry against a workman, charged with misconduct that may lead to imposition of a major punishment. The first task for the Labour Court, therefore, was to see whether the special procedure envisaged under Clause 45.0.0 was invoked bona fide, and applied to the facts and evidence on record, in terms that it is contemplated under the said Clause.
40. The Labour Court had a reference before it, whether the various orders of dismissal passed against the workmen were lawful and proper. It was, therefore, imperative for the Labour Court to go into the question whether the power under Clause 45.0.0 of the Standing Orders was rightly invoked and lawfully applied. It is only if the Labour Court concluded that the power was not rightfully invoked, or even if invoked rightly, applied wrongly, would the contingency arise where the Labour Court could hold that it was imperative for the petitioner-Employers to have held a domestic inquiry before the proceeding to impose a major penalty, in accordance with the procedure under Clause 35.0.0 (supra). It is not that, that the attention of the Labour Court was not drawn to the special procedure under Clause 45.0.0, which was invoked in this case.
41. A perusal of the written statement filed before the Labour Court shows that in paragraphs 2, 3 & 4 of the same, it has been clearly asserted that the extraordinary disciplinary powers, under Clause 45.0.0 of the Certified Standing Orders were invoked. The Labour Court, therefore, had to determine whether that power was validly invoked, before it could proceed to conclude that the Employers were under an obligation to hold a domestic inquiry. That finding, as to the domestic inquiry not being held by the petitioner-Employers, would require the Labour Court to negative invocation of powers under Clause 45.0.0 (supra), before dismissal of the workmen could be held illegal on ground of non-holding of a domestic inquiry. Much contrary to this approach, the impugned award betrays that the Labour Court had turned a Nelson's eye to the impact of Clause 45.0.0 of the certified Standing Orders. It has proceeded to conclude against the petitioner-Employers as if that clause never existed, or was never invoked.
42. It is, therefore, left to this Court to see whether Clause 45.0.0 of the Certified Standing Orders was rightly invoked by the petitioner-Employers. There can be little doubt that generally speaking the valid exercise of power of an Employer to dismiss an employee, whose service is protected by a statute (as distinguished from a mere contractual employment governed by the Master-Servant relationship) must be exercised, in accordance with the procedure provided for imposition of a major penalty of that kind. Even if a very detailed procedure is not spelt out under the relevant service rules or regulations, an inquiry to determine the truth of the allegations adhering to the fundamentals of the rules of natural justice would be imperative. Dispensation of the requirement to inquire into the misconduct of a workman or employee is permissible only in the circumstances where statutory service rules or regulations, do provided for that contingency. In case of industrial employment where the workman's tenure is certainly protected by the Industrial Disputes Act, it is the Certified Standing Orders, approved and duly certified by the competent authority applicable to the Employer that serve as service regulations for a workman with all statutory force. This statutory vigour for the Certified Standing Orders of an Employer flows from the Industrial Employment (Standing Orders) Act, 1946. Admittedly, in the present case, the Certified Standing Orders applicable to the petitioners have due approval and enforcement under the Act aforesaid.
43. Before venturing to answer whether one or the other sub-clauses of Clause 45.0.0 of the Certified Standing Orders would justify orders of dismissal for the grave misconduct alleged, being passed without holding a domestic inquiry, a brief survey of some authorities would be useful. In this context, a decision of the Delhi High Court in Daya Chand-I vs. National Thermal Power Station4, is apposite. In that case the employee was employed on security duty by the respondent, National Thermal Power Station on 04.04.1998. He was dismissed without inquiry by the Employers, invoking their powers under Rule 25 of the Standing Orders applicable to them on ground that the Disciplinary Authority, for reasons recorded by it in writing, was satisfied that it was reasonably not practicable to hold an inquiry in the manner provided in the Standing orders. It would be relevant if the provisions of Rule 25 of the Standing Orders, in re, Daya Chand-I (supra) are reproduced (quoted from the report of the judgment verbatim):
"25. Special Procedure in Certain Cases--
Notwithstanding anything contained in Standing Order No. 24, the Disciplinary Authority may impose any of the penalties specified in Standing Order No. 23 in any,of the following circumstances:
(i) the workman has been convicted on a criminal charge or on the strength of facts or conclusions arrived at by a judicial trial; or
(ii) where the Disciplinary Authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these Standing Orders; or
(iii) where the Disciplinary Authority is satisfied that in the interest of the security of the Corporation/company, it is not expedient to hold an enquiry in the manner provided in these Standing Orders."
44. The facts in Daya Chand-I (supra) in sum and substance were that the employee was deputed at the residence of a Director of the Employers, in the Asian Village Residential Complex. It was reported that the employee had indulged in an unnatural act with a child, leaving his post without permission. The child was aged 6 years and resided in the Garage of an adjoining flat, in the same Complex. The employee was allegedly caught red-handed by the child's parents and some neighbours. It was in the context of the aforesaid facts that the employee was served with a show cause notice, asking him why should he not be dismissed from service. He appears to have put in reply and denied. He refuted the allegations in their entirety. The Disciplinary Authority considered the matter and proceeded to inflict punishment of dismissal from service, invoking Rule 25(ii) of the Standing Orders, already mentioned. The Court, in dealing with the challenge, held with reference to the facts of the case, the contentions urged and authority on the point, thus:
"9. Three contentions have been raised by the Counsel for the petitioner at the hearing. The first contention raised was that no case was made out to proceed against the petitioner under Rule 25. The second contention was that there was no material before the authorities to take action and the third contention raised was that the order of termination was passed by the Deputy Manager (P&A). The Competent Authority of the petitioner was the Deputy General Manager who alone was empowered to act as the Disciplinary Authority of the petitioner.
10. The issue as to when an authority can dispense with enquiry has received the attention of Courts from time to time. Power of the employer to dispense with the enquiry has been upheld by the Courts. However, exercise of this power has been held to be strict and applicable to exceptional circumstances. In the judgment reported as AIR 1985 SC 251, Workmen of Hindustan Steel Ltd. v. Hindustan Steel Limited, Hon'ble Supreme Court held:
"When the decision of the employer to' dispense with enquiry is questioned, the employer must be in a position to satisfy the Court that holding of the enquiry will be either counter-productive or may cause such irreparable and irreversible damage which in the facts and circumstances of the case not be suffered. This minimum re-quirement cannot and should not be dispensed with to control wide discretionary power and to guard against the drastic power to inflict such a heavy punishment as denial of livelihood and casting a stigma without giving the slightest opportunity to the employee to controvert the allegation and even without letting him know what is his misconduct."
11. In a case of sexual misconduct, the Hon'ble Supreme Court in the judgment reported as 1997 (2) SCC 534, Avinash Nagra v. Navodaya Vidyalaya Samiti, held as under:
"It is seen from the record that the appellant was given a warning of his sexual advances towards a girl student but he did not correct himself and mend his conduct. He went to the Girls Hostel at 10 p.m. in the night and asked the Hostel helper, to misguide the girl by telling her that Bio-Chemistry Madam was calling her; believing the statement, she came out of the hostel. She was an active participant in cultural activities. Taking advantage thereof, he misused his position and adopted sexual advances towards her. When she ran away from his presence, he pursued her, to the room where she locked herself inside, he banged the door. When he has informed by her room mates that she was asleep, he rebuked them and took the torch from the room and went away. He admitted his going there and admitted his meeting with the girl but he had given a false explanation which was not found acceptable to an Inquiry Officer, namely, Asstt. Director. After conducting the enquiry, he submitted the report to the Director and the Director examined the report and found him to be not worthy to be a teacher in the institution. The Director has correctly taken the decision not to conduct any enquiry exposing the students and m6desty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation. In the circumstances, it is very hazardous to expose the young girls for tortuous process of cross-examination."
12. Thus, where a disciplinary enquiry is dispensed with on the plea that it was not reasonably practicable to hold one, the Court must be satisfied that it was not a colourable exercise or a mala-fideaction of the employer. The employer was to satisfy the Court that good and objective reasons existed showing both proof of mis-conduct and the reasons for dispensing with the enquiry. This minimum requirement cannot and should not be made to suffer."
45. It must be remarked in connection with Daya Chand-I (supra) that the case apparently did not involve invoking jurisdiction of the Labour Court, or the Industrial Tribunal, but the event there did turn on an interpretation of Standing Orders applicable to the Employers' establishment, where there was a provision to dispense with the procedure of holding a domestic inquiry in the exceptional circumstances indicated under Rule 25 of the Standing Orders.
46. In re, The Deputy General Manager (SME), State Bank of India, Chennai and another vs. The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chennai5, the issue arose out of an industrial dispute, properly so called that was raised by a workman against the petitioner, State Bank of India, and referred by the appropriate Government to the Adjudication of the Central Government Industrial Tribunal-cum-Labour Court. The Industrial dispute was raised by the workman in the The Deputy General Manager (SME) and another vs. The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chennai (supra) challenging an order of removal from service, passed by the Employers. The action by the Employer-Bank was taken after a duly constituted departmental inquiry found the employee guilty on eleven charges, and he was asked to show cause against the findings of the inquiry officer. The Disciplinary Authority ordered the employee's dismissal from service vide order dated 02.12.2005. The departmental Appellate Authority modified the punishment of dismissal into one of removal from service with superannuation benefits, about which the learned Judge has said in the part of his Lordship's judgment setting out facts, 'by showing leniency'. The Industrial Tribunal-cum-Labour Court vide its award dated 15.05.2009 after hearing both parties held the order of punishment to be just and proper, denying relief to the workman. Aggrieved by the aforesaid award of the Tribunal, the employee earlier filed a writ petition to the High Court. In the said writ petition, the employee had contended that the Presiding Officer of the Tribunal was not familiar with Tamil and his mother-tongue is Malayalam. The translated copy of the inquiry proceedings was not available to him. Hence, the High Court taking note of this fact in the earlier writ petition came to a conclusion that the Presiding Officer of the Tribunal could not have applied his mind, given this handicap. The High Court on the earlier occasion, therefore, set aside the award dated 15.05.2009, and remanded the matter to the Tribunal. The Court in that judgment also directed the employee to file English translation of the inquiry proceedings, which were in Tamil. Post-remand, the Tribunal concluded that the inquiry was fair and proper, and that the finding of guilt against the employee relative to charges 1 to 6, 8 and 9, was also lawful and proper. The Tribunal, however, passed an award dated 30.04.2012, ordering the employee to be reinstated in service without back-wages, but with continuity of service and all other benefits. This order was made invoking the powers under Section 11A of the Industrial Disputes Act. It was this determination by the Tribunal that brought the Employers to the High Court in The Deputy General Manager (SME) and another vs. The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chennai (supra).
47. It must be remarked at once that this decision though one arising on facts where punishment was awarded by the Employers after a fullfledged inquiry, and not one by invoking the special procedure dispensing with the requirement of a domestic inquiry, examined the issue regarding course of action to be adopted where no inquiry is held. This venture was undertaken by the Court in the context of examining the powers of the Labour Court under Section 11-A of the Industrial Disputes Act to reduce the punishment awarded, where it is found to be shockingly disproportionate. The principles that would be applied by a Labour Court have been detailed by more or less a reference to the decision of the Supreme Court in Workmen of M/s Firestone Tyre and Rubber Co. of India (P.) Ltd. vs. Management and others6. The said principles laid down by their Lordships figure in paragraph 19 of the Report, in re, The Deputy General Manager (SME) and another vs. The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chennai (supra) thus:
"19. In this regard, it would be appropriate to see some of the decision of the Hon'ble Supreme Court. In (1973) 1 SCC 813 (Workman v. Firestone Tyre and Rubber Co.) the Hon'ble Supreme Court has observed as follows-
26. The powers of the Tribunal when a proper enquiry has been held by an employer as well as the procedure to be adopted when no enquiry at all has been held or an enquiry held was found to be defective, again came up for consideration in Management of Ritz Theatre (P) Ltd. v. Its Workmen [AIR 1963 SC 295: (1962) 2 Lab LJ 498]. Regarding the powers of a Tribunal when there has been a proper and fair enquiry, it was held:
"It is well settled that if an employer serves the relevant charge or charges on his employee and holds a proper and fair enquiry, it would be open to him to act upon the report submitted to him by the enquiry officer and to dismiss the employee concerned. If the enquiry has been properly held, the order of dismissal passed against the employee as a result of such an enquiry can be challenged if it is shown that the conclusions reached at the departmental enquiry were perverse or the impugned dismissal is vindicative or male fide, and amounts to an unfair labour practice. In such an enquiry before the Tribunal, it is not open to the Tribunal to sit in appeal over the findings recorded at the domestic enquiry. This Court has held that when a proper enquiry has been held, it would be open to the enquiry officer holding the domestic enquiry to deal with the matter on the merits bona fide and come to his own conclusion. ............
32. From those decisions, the following principles broadly emerge:
(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens [(1971) 1 SCC 742] within the judicial decision of a Labour Court or Tribunal."
48. There is yet another decision of the Supreme Court on which reliance has also been placed by Sri B.N. Singh, learned counsel for the first respondent. It is their Lordships' decision in Amar Chakravarty v. Maruti Suzuki (I) Ltd.7. In the said decision of their Lordships, the question arose about the onus probandi to prove whether termination of services of the workman was lawful, would lie on which of the parties - Employers or the workman. This question arose in the context of an ongoing proceeding before Labour Court on a reference of an industrial dispute made to it where the Employers had exercised powers, similar to those in the present case dismissing the workman from service, dispensing with the holding of a domestic inquiry on the ground that it was not reasonably practicable. The Labour Court initially placed the burden on the issue to prove whether the termination of workman's services was lawful, and if not, to what relief he is entitled upon the Employers. At an interlocutory stage of the proceedings, the Labour Court, however, shifted the onus to prove the aforesaid issue from the Management to the workman. At that stage, the workman challenged the order shifting the onus upon him before the High Court, which upheld the Labour Court. In Appeal by Special Leave, their Lordships of the Supreme Court held:
"12. In our opinion, in the light of the settled legal position on the point, the judgment of the High Court is clearly indefensible. Whilst it is true that the provisions of the Evidence Act, 1872 per se are not applicable in an industrial adjudication, it is trite that its general principles do apply in proceedings before the Industrial Tribunal or the Labour Court, as the case may be. (See Municipal Corpn., Faridabad v. Siri Niwas [(2004) 8 SCC 195 : 2004 SCC (L&S) 1062].) In any proceeding, the burden of proving a fact lies on the party that substantially asserts the affirmative of the issue, and not on the party who denies it. (See Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558], SCC p. 561, para 9). Therefore, it follows that where an employer asserts misconduct on the part of the workman and dismisses or discharges him on that ground, it is for him to prove misconduct by the workman before the Industrial Tribunal or the Labour Court, as the case may be, by leading relevant evidence before it and it is open to the workman to adduce evidence contra. In the first instance, a workman cannot be asked to prove that he has not committed any act tantamounting to misconduct.
13. In Karnataka SRTC [(2001) 5 SCC 433] relied upon by the learned counsel for the appellant, a Constitution Bench of this Court affirmed the decision of this Court in Shambhu Nath Goyal v. Bank of Baroda [(1983) 4 SCC 491 : 1984 SCC (L&S) 1], wherein the issue for consideration was as to at what stage, the management is entitled to seek permission to adduce evidence in justification of its decision to terminate the services of an employee. It was held that the right of the employer to adduce additional evidence, in a proceeding before the Labour Court under Section 10 of the Act, questioning the legality of the order terminating the service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement.
14. It was observed that: (Karnataka SRTC case [(2001) 5 SCC 433] , SCC p. 441, para 15) "15. ... ''16. ... The management is made aware of the workman's contention regarding the defect in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay.' [ As observed in Shambhu Nath Goyal v. Bank of Baroda, (1983) 4 SCC 491, p. 506, para 16.] "
15. Similarly, in Firestone Tyre & Rubber Co. [(1973) 1 SCC 813 : 1973 SCC (L&S) 341] this Court observed that: (SCC p. 828, para 32) "32. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra."
(emphasis supplied by us) (See also United Bank of India v. T.N. Banks Deposit Collectors Union [(2007) 12 SCC 585 : (2008) 2 SCC (L&S) 529]; Engg. Laghu Udyog Employees' Union v. Labour Court and Industrial Tribunal [(2003) 12 SCC 1 : 2004 SCC (L&S) 974].)"
49. These authorities have mostly laid down law in the context of exercise of powers by the Labour Court under Section 11-A of the Act. Though that is not the specific plea raised here, but that could be involved in any case where the Labour Court is seized of a reference involving dismissal from service. However, that is not the principal issue to be examined in this matter. What has to be seen here is whether the Management were entitled to exercise powers, given the facts and circumstances of the case to dispense with the procedure of holding a domestic inquiry, in accordance with the Standing Orders, and take resort to special procedure in Clause 45.0.0 of the Standing orders. This Court thinks that cases where power to dispense with inquiry on one or the other ground, if provided under the Standing Orders in exceptional cases is exercised, would render it imperative that evidence be recorded before the Labour Court. In that case, in the nature of things, no application seeking permission to lead evidence, or a case made out to that effect in pleadings may be required. This is so because in the very nature of the power exercised, there is no evidence recorded by the Employers, in the formal sense of the term wherever inquiry is dispensed with. The evidence is certainly there, but not led either on behalf of the Employers or in defence by the workmen. The power exercised by the Employers is by invocation of a special procedure to dispense with inquiry, as in the present case. Therefore, the Labour Court ought to require parties to lead evidence in a matter like the present one. The parties in their own interest must take the opportunity to do so. It is gratifying to note that in the present case, the parties and the Labour Court adopted that course and evidence on both sides has been led. This course is all the more necessary because given the nature of proceedings where no domestic inquiry is held, there would be scanty material, if any, available to the Labour Court to record its conclusion whether the power to dispense with inquiry under the Standing Orders has been rightfully exercised. In the event it has been rightfully exercised, the law laid down by their Lordships in the Workmen of M/s Firestone Tyre and Rubber Co. of India (P.) Ltd. (supra), which requires such opportunity to be given by the Tribunal where no inquiry is held would be attracted. The principles enumerated in sub-paras (4), (5), (6), (7) and (8), in re, Workmen of M/s Firestone Tyre and Rubber Co. of India (P.) Ltd. (supra) are relevant.
50. The Labour Court in this case had all the documentary evidence filed before it led by the petitioner-Employers and also by the first respondent, on behalf of the workmen. There was also oral evidence led by the Employers, including the deposition-in-chief by EW-2, V.K. Shukla, Joint General Manager (Personnel and Industrial Relations) of the petitioner-Company. He is one of the complainants regarding the incident of violence that took place in the night of 03/04.06.2009, which too is on record and proved by EW-1, Hitesh Kulshreshtha, Additional General Manager (HR) with the petitioner-Company. The said complaint has been marked as Ex. E5. Also, on record is another complaint about the same incident by Sri A.K. Dixit, another senior official of the petitioner-Company, both addressed to the Vice President (Works) of the petitioner-Company. Both the complaints are about rioting with arms and deadly weapons by the workmen, carrying a graphic account of the occurrence where a violent mob laid siege to the Officers' colony and ravaged it. Sri V.K. Shukla in his deposition-in-chief (on affidavit) dated 04.08.2015, filed before the Labour Court has testified about the occurrence involving the workmen, as under:
"दिनांक 03 व 04 जून 2009 की रात्रि में लगभग 1:30 बजे श्री जे0बी0 सिंह, 50-60 परिचित / अपरिचित, व्यक्तियों / कर्मचारियों की भीड़ की अगुवाई करते हुए, डी टाइप बलाक में स्थित मेरे निवास स्थान, डी-7, कृभको श्याम नगर, ग्राम व पोस्ट पिपरोला, तहसील सदर, जिला शाहजहांपुर (उ0प्र0) पर आये। उक्त भीड़ में श्री जे0बी0 सिंह यादव, श्री बी0पी0 शुक्ला, श्री राधेश्याम, श्री राकेश मिश्रा, श्री शमशेर चन्द्र (सुरक्षा विभाग), श्री सुशील कुमार मिश्रा तथा श्री बी0के0 राजपूत (फायर एवं सेफ्टी विभाग), श्री सेठ पाल सिंह, मैकेनिकल विभाग, श्री भगवान सिंह, टेक्नीकल विभाग के कर्मचारीगण भी उक्त भीड़ में शामिल थे। मेरे घर के पास पहुंचकर भीड़ में उपस्थित लोगों ने सर्वप्रथम नारेबाजी की तथा डी टाइप बलाक के कई कमरों की बिजली काट दी। वहां पर उपस्थित जनसमुदाय ने प्रतिष्ठान के प्रबन्धकगण, खासकर मुझे तथा मेरे परिवारीजन को भद्दी-भद्दी गालियां देने लगे। उपर्युक्त वर्णित कर्मचारीगण, प्रतिष्ठान के प्रबन्धकगण, खासकर मुझे तथा मेरे परिवार जन को भद्दी-भद्दी गालियां तो देते रहे, साथ ही मेरे घर के मुख्य द्वार के अन्दर घुस आये तथा सीढ़ी पर चढ़कर, निवास स्थान के अन्दर, जाने वाले, दरवाजे को तोड़ने लगे। इन्होने लकड़ी के दरवाजे के सामने लगे हुए, जाली के दरवाजे को तोड़ डाला, परन्तु लकड़ी के दरवाजे को नहीं तोड़ सके। ये लोग रात्रि की उक्त बेला में, लगभग 1/2 घंटे तक नारेबाजी करने, धमकी देने, गाली-गलौज करने, घर में अनाधिकृत घुसने तथा दरवाजे को तोड़ने के काम में लिप्त रहे। लगभग आधे घण्टे के उपरान्त भीड़ में उपस्थित सभी व्यक्ति डी टाइप ब्लाक से वापस चले गये।
इसके उपरान्त, दिनांक 3/4 जून, 2009 की रात्रि की प्रात: बेला में लगभग 03:15 बजे, पुन: उपर्युक्त वर्णित कर्मचारीगण 50-60 परिचित/ अपरिचित, व्यक्तियों/ कर्मचारियों की भीड़ की अगुवाई करते हुए पुन: डी टाइप ब्लाक में आये। वहां आते ही नारेबाजी करने लगे, अफसरों तथा उनके परिवार जन का नाम लेकर भद्दी-भद्दी गालियां देते रहे। श्री ए0के0 दीक्षित, तत्कालीन महाप्रबन्धक तथा अधोहस्ताक्षरी बी0के0 शुक्ला, तत्कालीन उपमहाप्रबन्धक (कार्मिक एवं औद्योगिक सम्बन्ध) के घर में घुसे। घर के बेड रूम, ड्राइंग रूम तथा अन्य कमरों के खिड़कियों के शीशे पत्थरों तथा गमलों से मार-मार कर तोड़ डाले। श्री ए0के0 दिक्षित जी के घर के सामने खड़ी की गयी उनकी व्यक्तिगत कार को बुरी तरह से तोड़ा। भीड़ में उपस्थित लोग यह भी कर रहे थे कि, कि आग लगा दो। उक्त समय उग्र भीड़ में से बन्दूक/ कट्टा से गोली की आवाज सुनाई दी। लगभग 20-30 मिनट तक ये लोग, इस घृणित कार्य को करते रहे, इसके उपरान्त डी0 टाइप ब्लाक से वापस चले गये। इनके इस कृत्य से डी टाइप में रहने वाले अधिकारियों व उनके परिवारजन, खासकर श्री ए0के0 दीक्षित, तथा अधोहस्ताक्षरी बी0के0 शुक्ला तथा परिवारजन के जान-माल का खतरा उत्पन्न हो गया था। डी टाइप ब्लाक में रहने वाले अधिकारी व परिवारजन को बहुत गहरा सदमा लगा तथा बहुत दिनों तक जान माल के लिए भयभीत रहे।
दिनांक 04 जून 2009 की प्रात: लगभग 4:30 बजे से 5:30 बजे के मध्य, उपर्युक्त वर्णित कर्मचारीगण की अगुवीई में, लगभग 150-200 परिचित/ अपरिचित व्यक्ति/ कर्मचारी ने, कृभको श्यामनगर, के मुख्य द्वार के आवागमन को घेराव करने के उपरान्त बाधित कर दिया। कालोनी के मुख्य द्वार के पास खड़े किये गये ट्रैक्टर को, इन लोगों ने, गेट के सामने, रोड पर, खड़ा करके, ट्रैक्टर के पहियों की हवा निकाल दिया। कालोनी में, बिक्री हेतु, आने वाले दूध, सब्जी तथा आवश्यक वस्तुओं को कालोनी में नहीं आने दिया। दूध वालों के, दूध को जबरदस्ती जमीन पर गिराया, बीमार व्यक्तियों को गेट के बाहर इलाज कराने हेतु, नहीं जाने दिया। प्रात: 6:00 बजे की पाली में अपने काम पर जाने वाले अधिकारियों व कर्मचारियों को प्रतिष्ठान में, नहीं जाने दिया। हमारा प्रतिष्ठान केमिकल प्रतिष्ठान की श्रेणी में आता है। प्रतिष्ठान में अमोनिया गैस का उत्पादन/ भण्डारण, क्लोरीन, नैफ्ता, नैचुरल गैस, जैसे अत्यधिक ज्वलनशील पदार्थों का प्रचुर मात्रा में तथा उनका उपयोग/ बर्ताव किया जाता है। उक्त दिन, इनके द्वारा अधिकारियों/ कर्मचारियों के काम पर जाने से रोकने के कारण, अधिकारी/ कर्मचारी उपर्युक्त वर्णित अत्यधिक ज्वलनशील पदार्थों का रख-रखान नहीं कर पाये। ऐसे में, इन लोगों ने प्रतिष्ठान के न केवल कर्मचारी तथा उनके परिजन वरन् प्रतिष्ठान के पास में निवासरत ग्रामवासियों के जीवन को भी कुछ समय के लिये असुरक्षित कर दिया था। यदि कोई दुर्घटना घटित होती तो उसका खामियाजा बहुत ही भयावह हो सकता था।"
(Emphasis by Court)
51. This witness was cross-examined on behalf of respondent no.1. Likewise is the very detailed deposition-in-chief of Hitesh Kulshreshtha, who proved as many as 42 documents exhibited on behalf of the petitioners, carrying every detail of the violent episode at the hands of the mob commanded by the workmen. Hitesh Kulshreshtha was cross-examined by the defence representative on 23.08.2015 thoroughly, which too is on record.
52. In presence of so much evidence, it was certainly no justification for the Labour Court to have said in a single sentence that it was incumbent upon the petitioners to have held a domestic inquiry before imposing a major punishment. A reading of the award shows that the Labour Court was well aware of all the evidence that was before it, but did not choose to go into the said evidence itself to find out the truth or otherwise of the charges. It also did not look into that evidence to opine whether powers under Clause 45.0.0 were rightfully exercised by the Employers to dispense with the inquiry. This Court has looked into evidence, not to assess the worth of it with reference to veracity of the charges, which the Labour Court alone could have done. The said authority would lie with the Inquiry Officer and the Disciplinary Authority, in the event an inquiry were held. In the absence of an inquiry being conducted, the power to determine the worth of the charges would lie with the Labour Court. It has not exercised those powers.
53. Nevertheless, this Court can certainly look into that evidence for the limited purpose to find out whether the petitioners rightfully dispensed with the otherwise mandatory requirement under the Standing Orders to hold an inquiry, by invoking Clause 45.0.0. This Court may remark at once that under Clause 45.0.0, be it sub-clause (b) or (c), the specific ground that it is not reasonably practicable to hold an inquiry, does not find place. At the same time, sub-clause (c) of Clause 45.0.0, empowers the petitioners to hold a workman guilty and to summarily dismiss him without inquiry, if he is found by the Management (on evidence available with them) to be guilty of very serious kind of misconduct such as sabotage, firing or attempting murder or manhandling or attempting physical resorts to senior official in industrial premises. Sub-Clause (b) on the other hand provides that an employee, particularly one holding a position of confidence, if believed or suspected by the Management to have betrayed the confidence, can be penalized (by any of the prescribed penalties). But, such belief or suspicion should not be one based on mere whim or fancy. It should be a bonafide opinion responsibly held.
54. It is not the first respondent's case, either before this Court or was it the part of the dispute referred to the Labour Court that Clause 45.0.0, or any of its sub-clauses are in any way ultra vires the U.P. Industrial Disputes Act, or violative of any other fundamental right of the workmen, or otherwise violative of the Constitution.
55. On the evidence that has been placed on record before the Labour Court, this Court is of clear opinion that the petitioners lawfully exercised their power to dispense with the domestic inquiry against the workmen, who had commanded a mob to manhandle high ranking officials of the petitioners in the unearthly hours of the night, misbehaved with their families, damaged their official residences, and a private car of one of the officials. Much more than that the workmen by their act as would appear from the evidence of V.K. Shukla, Joint General Manager (Personnel and Industrial Relations) of the petitioners, by laying the siege to the entrance of the industrial plant, prevented officers and workmen from proceeding to their allotted duty stations in time. It has been emphasized that the petitioners' plant is a chemical plant, that handles dangerous chemicals including Ammonia. A little delay in an employee or officer reaching his assigned station, could have led to an industrial disaster with widespread ramification in the locale, endangering human life. Bearing in mind all this evidence, while this Court may not or cannot hold the charges to be proved, it is certainly of opinion that powers under Clause 45.0.0, sub-Clauses (b) and (c) were rightfully exercised by the petitioner-Management.
56. The other submission of Sri B.N. Singh, learned counsel for the respondent in support of the impugned award is founded on the reasoning, which has served as basis for the Labour Court to reach its conclusions. It is about the discriminatory treatment given to the workmen represented by respondent no.1, who are eight in numbering, vis-a-vis, the other two, that is to say, Sethpal Singh and Bhagwan Singh, who have been reinstated, though identically charged. Sri B.N. Singh, learned counsel emphasized that by the time the matter was before the Labour Court, the two reinstated workmen, like the workmen, had also been convicted by the Criminal Cour; the case of the workmen is, therefore, absolutely at par with the two reinstated workmen, leading to a clear inference of hostile discrimination.
57. In this regard, Sri B.N. Singh has placed reliance upon the decision of the Punjab and Haryana High Court in Shamsher Singh vs. Pepsu Road Transport Corporation and another8, where it was a case relating to the petitioner, a Works Manager and another Jagjit Singh Pannu, the Depot Manager, being charged with misappropriation and misuse of the Corporation's moneys. Both were found guilty of gross misconduct and lack of integrity. While the petitioner's services in that case were terminated with immediate effect, Pannu was awarded punishment of stoppage of two increments, with cumulative effect. In these circumstances, Bakhshish Kaur, J. held thus:
"12. The findings recorded by the punishing authority holding the petitioner responsible and guilty of act complained of do not call for interference because allegations of misappropriation, etc., are proved but the only point under consideration is whether on the point of sentences, he has been discriminated against Jagjit Singh Pannu? Since both were held guilty for misappropriation and misuse and exceeding the power regarding purchases, etc., therefore, the penalty imposed upon the petitioner for dismissal from service, amounts to discrimination as against the other, who was awarded lesser punishment. It would therefore amount to denial of justice. In this context, my attention has been drawn to Sengara Singh v. State of Punjab, [1983 (2) L.L.N. 691], and Swinder Singh v. Director, State Transport, Punjab Chandigarh, [1988 (7) S.L.R. 112].
13. The order imposing severe penalty of dismissal from service is arbitrary. The object of Art. 14 of the Constitution is to ensure fairness and equality of treatment. In the sphere of public employment, this means that any action taken by the employer against an employee must be fair, just and reasonable which are the components of "fair treatment," as held in Delhi Transport Corporation v. D.T.C. Mazdoor Congress, [1991 (1) L.L.N. 613].
14. Considering the facts and circumstances of the case, I am of the view that the treatment meted out to the petitioner by imposing major penalty of dismissal suffers from the vice of arbitrary action. It would, therefore, tantamount to denial of equality enshrined under Art. 14 of the Constitution."
58. Sri B.B. Jauhari, learned counsel appearing for the petitioners has submitted that no parity can be claimed from an inherent wrong. He has placed reliance upon a decision of the Supreme Court in State of M.P. vs. Parvez Khan9, where the respondent's claim to appointment on compassionate basis to the Madhya Pradesh Police was refused on ground that he was involved in two criminal cases. The Superintendent of Police declined the claim. The respondent challenged the order by way of a writ petition before the High Court on the ground that in the first case he was acquitted on 31st January, 2007, and, in the second, he was discharged on account of compounding of the offence. Learned Single Judge, who heard the writ petition dismissed it, but on appeal, a Division Bench reversed the judgment holding that since the respondent was acquitted, he could not be considered unsuitable. It was also indicated that no reason has been given as to why after acquittal in the criminal case, the respondent was still considered as unsuitable. The Division Bench directed consideration of the case afresh. Apart from answering other issues relating to a prosecution involving moral turpitude and the right to be considered for appointment to Government service, the Court dealt with a plea also raised by the respondent, based on parity. It was pointed out that two other candidates, similarly circumstanced as the respondent, whose name finds place in paragraph 10 of the report, were recruited to Government service. Against one one of them, three criminal cases were registered prior to recruitment, but he was acquitted, either on the basis of compromise or giving him the benefit of doubt. Similarly, the other candidate who was recruited to the police, and whose name also finds place in paragraph 10 of the report, was tried in a criminal case, but acquitted before appointment, extending him either the benefit of doubt, or on the basis of compounding. The petitioner urged that he was similarly circumstanced, and ought not to be refused appointment, particularly, in view of guidelines of the Madhya Pradesh Government of 5th June, 2003, that required an independent view to be taken where a candidate has concealed information about the pendency of a trial against him, and not where there is no such concealment, like his case. Their Lordships repelled the said submission holding thus in paragraph 14 of the report:
"14. The plea of parity with two other persons who were recruited can also not help the respondent. This aspect of the matter was also gone into by this Court in Mehar Singh [Commr. of Police v. Mehar Singh, (2013) 7 SCC 685 : (2013) 3 SCC (Cri) 669 : (2013) 2 SCC (L&S) 910] and it was held: (SCC p. 704, para 36) "36. The Screening Committee's proceedings have been assailed as being arbitrary, unguided and unfettered. But, in the present cases, we see no evidence of this. However, certain instances have been pointed out where allegedly persons involved in serious offences have been recommended for appointment by the Screening Committee. It is well settled that to such cases the doctrine of equality enshrined in Article 14 of the Constitution of India is not attracted. This doctrine does not envisage negative equality (Fuljit Kaur [Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455] ). It is not meant to perpetuate illegality or fraud because it embodies a positive concept. If the Screening Committee which is constituted to carry out the object of the comprehensive policy to ensure that people with doubtful background do not enter the police force, deviates from the policy, makes exception and allows entry of undesirable persons, it is undoubtedly guilty of committing an act of grave disservice to the police force but we cannot allow that illegality to be perpetuated by allowing the respondents to rely on such cases. It is for the Commissioner of Police, Delhi to examine whether the Screening Committee has compromised the interest of the police force in any case and to take remedial action if he finds that it has done so. Public interest demands an in-depth examination of this allegation at the highest level. Perhaps, such deviations from the policy are responsible for the spurt in police excesses. We expect the Commissioner of Police, Delhi to look into the matter and if there is substance in the allegations to take necessary steps forthwith so that policy incorporated in the Standing Order is strictly implemented."
59. It is well known and elementary that a plea of discrimination cannot be negatively oriented. No parity can be claimed from a wrong on the plea of violation of Article 14. If that were permitted, it would lead to perpetuation of a wrong, and its repetition, which is certainly not, even remotely the idea behind the guarantee under Article 14. This being so, even if two workmen, that is to say, Sethpal Singh and Bhagwan Singh have been reinstated, though similarly circumstanced like the workmen represented by respondent no.1, no parity can be claimed on that basis. Even otherwise, it has been pointed out, and rightly so that the case of the workman and the two others reinstated, are distinguishable. All the seven workmen represented by respondent no.1, except J.B. Singh were employed either as guards or as firemen. The two reinstated were assistants with office jobs, or assignment nowhere connected to security. The seven men dismissed from service were either security guards or firemen. Both were integral part of the security system of the petitioner's establishment. The conduct of the seven workmen, other than J.B. Singh, in indulging in acts of the kind that the petitioner-Employers have found against them, would send the entire security establishment asunder. A security personnel turning a cause of threat to life and property of those whom he is assigned to guard and protect, is very different from the case of any other workman. So far as J.B. Singh is concerned, he was seen to be commanding the mob and exhorting them to violence. There is evidence about it. In the circumstances, there is no foundation to hold that there was any hostile discrimination practiced by the petitioners in reinstating the two workmen, whose case is distinguishable from the others, represented by respondent no.1. The findings of the Labour Court, therefore, that the workmen were entitled to reinstatement on ground of parity with Sethpal Singh and Bhagwan Singh, does not commend itself to this Court. The Labour Court has also remarked that Sethpal Singh and Bhagwan Singh were also convicted like the workmen. Of these two workmen who were reinstated, one is said to have superannuated, and it must be emphasized that even if reinstatement of the two men was a wrong, no parity can be claimed to replicate the wrong. There is then also this feature that when the two workmen, Bhagwan Singh and Sethpal Singh were reinstated considering the nature of their duty, and whatever role of theirs was found by the Management in the occurrence, there was no conviction recorded against any of the workmen charged, including the eight represented by respondent no.1, here. However, by the time the Labour Court decided to pass the impugned award, that is principally founded on practice of double standard by the petitioners in reinstating two workmen while denying that benefit to the other eight, a judgment of conviction had been passed against all the workmen by a Court of competent criminal jurisdiction. The Labour Court failed to take this into account at all, while passing the impugned award. The Labour Court has also based its award on the reasoning that mere conviction by a Court of Criminal Jurisdiction is not a relevant ground under the U.P. Industrial Disputes Act in considering reinstatement of a workman. This finding is also based on fallacious reasoning. Conviction in a criminal case, that too, relating to acts of vandalism and assault on the property of the petitioner-Employers and their officials is always a relevant consideration that any employer would bear in mind. It is relevant under Clause 45.0.0. of the Standing Orders. It is not necessary that it should find express mention in the U.P. Industrial Disputes Act, or for that matter in any other statute to enable the petitioners to exercise that power. In the totality of circumstances, this Court is of opinion that the impugned award cannot be sustained and is liable to be quashed.
60. In the result, the writ petition succeeds and is allowed. The impugned award dated 06.09.2018 (published on 22.12.2018) passed by the Labour Court, U.P., Bareilly in Adjudication Case no.21 of 2017, is hereby quashed. There shall be no order as to costs.
Order Date :- 9.8.2019 Anoop