Madhya Pradesh High Court
Divisional Railway Manager vs Premlal Tirra on 6 October, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P.No.5166/2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 6th OF OCTOBER, 2023
WRIT PETITION No. 5166 of 2015
BETWEEN:-
DIVISIONAL RAILWAY MANAGER CENTRAL
RAILWAY NOW KNOWN AS WEST CENTRAL
RAILWAY, JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI DEVESH BHOJNE - STANDING COUNSEL FOR UNION OF INDIA)
AND
PREMLAL TIRRA S/O TIRRA HARIJAN, AGED
ABOUT 55 YEARS, GRAM SALAIYA STATION
TEHSIL AND DISITRICT KATNI (MADHYA
PRADESH)
.....RESPONDENTS
(NONE)
This petition coming on for admission this day, the court passed
the following:
ORDER
This petition under Article 227 of Constitution of India has been filed against the award dated 04.12.2014 passed by CGIT, Jabalpur in Case No.CGIT/LC/R/74/98 by which the respondent has been directed to be reinstated with continuity of service but without back wages.
2 W.P.No.5166/20152. The matter was referred by Government of India, Ministry of Labour, New Delhi by letter dated 29.04.1998 on the following reference:-
"Whether the action of the Divisional Railway Manager, Central Railway, Jabalpur in terminating the services of Shri Premlal Tirra, YKC, Lock Katni w.e.f. 10.06.1985 is legal and justifying? If not, what relief the concerned workman is entitled for."
3. It is the case of respondent/workman that he was appointed as YKC on 01.06.1978 at Loco Katni. He continued to work on the said post till he was removed from service i.e. on 10.06.1985. He had already completed his 7 years of service. He has been removed from service on the allegation of unauthorized absence of 52 days. He was not given any opportunity of hearing. The Enquiry was conducted in one day and no chance to cross-examination the witnesses of management was given to him.
4. The petitioner filed his response to the statement of claim. The Labour Court by order dated 03.07.2009 came to a conclusion that the enquiry conducted by the workman was not proper and illegal and accordingly the petitioner was permitted to prove the misconduct by adducing evidence. Accordingly, the management filed affidavit of Shri S.K. Agrawal by way of evidence and the case of the petitioner is that respondent was on unauthorized absence for a period of 52 days. Whereas, it was the case of the respondent that because of personal difficulties, he was on absence.
5. The CGIT, after considering evidence led by the parties, held that the evidence of management witness is not cogent to prove that 3 W.P.No.5166/2015 absence of workman for 52 days was unauthorized. It was also held that the witnesses of management has claimed ignorance about the medical certificate submitted by respondent and it was held that punishment from removal from service for absence of 52 days cannot be said to be proper and accordingly, the order of punishment of dismissal from duty was set aside and it was held that the workman is entitled for reinstatement.
6. Since, the dispute was raised after 13 years of imposition of punishment of removal, therefore it was held that the back wages cannot be awarded.
7. Challenging the award passed by CGIT, it is submitted by counsel for petitioner that the dispute was raised by the respondent after 13 long years, therefore the same was barred by time. It is further submitted that respondent was on unauthorized absence and therefore the interference in the punishment order is bad in law.
8. Heard the learned counsel for the petitioner.
9. So far as the contention raised by counsel for petitioner that the reference was barred by time is concerned, the same is misconceived.
10. Section 10 of I.D. Act is reads as under:-
"10. Reference of disputes to Boards, Courts or Tribunals.--(1) [Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing,--
(a) refer the dispute to a Board for promoting a settlement thereof; or 4 W.P.No.5166/2015
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or 91 [(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c) : ] Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced:
Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.
(1-A) Where the Central Government is of opinion that any industrial dispute exists or is apprehended and the dispute involves any question of national importance or is of such a nature that 5 W.P.No.5166/2015 industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Government may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication.
(2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court, Labour Court, Tribunal or National Tribunal, the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly.
(2-A) An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the appropriate Government:
Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months:
Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, to the Labour Court, Tribunal or National Tribunal for extension of such period or for any other reason, and the presiding officer of such Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing, extend such period by such further period as he may think fit:6 W.P.No.5166/2015
Provided also that in computing any period specified in this sub-section, the period, if any, for which the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any injunction or order of a Civil Court shall be excluded:
Provided also that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this sub-section had expired without such proceedings being completed.
(3) Where an industrial dispute has been referred to a Board, Labour Court, Tribunal or National Tribunal under this section, the appropriate Government may by order prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference.
(4) Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto.
(5) Where a dispute concerning any establishment or establishments has been, or is to be, referred to a Labour Court, Tribunal or National Tribunal under this section and the appropriate Government is of opinion, whether on an application made to it in this behalf or otherwise, that the dispute is of such a nature that any other establishment, group or class of establishments of a similar nature is likely to be interested in or affected by, such dispute, the appropriate Government may, at the time of making the reference or at any time thereafter but before the submission of the award, include in that reference such establishment, group, or class of establishments, 7 W.P.No.5166/2015 whether or not at the time of such inclusion any dispute exists or is apprehended in that establishment, group or class of establishments.
(6) Where any reference has been made under sub-section (1-A) to a National Tribunal, then notwithstanding anything contained in this Act, no Labour Court or Tribunal shall have jurisdiction to adjudicate upon any matter which is under adjudication before the National Tribunal, and accordingly,--
(a) if the matter under adjudication before the National Tribunal is pending in a proceeding before a Labour Court or Tribunal, the proceeding before the Labour Court or the Tribunal, as the case may be, in so far as it relates to such matter, shall be deemed to have been quashed on such reference to the National Tribunal; and
(b) it shall not be lawful for the appropriate Government to refer the matter under adjudication before the National Tribunal to any Labour Court or Tribunal for adjudication during the pendency of the proceeding in relation to such matter before the National Tribunal.
Explanation.--In this sub-section "Labour Court" or "Tribunal" includes any Court or Tribunal or other authority constituted under any law relating to investigation and settlement of industrial disputes in force in any State.
(7) Where any industrial dispute, in relation to which the Central Government is not the appropriate Government, is referred to a National Tribunal, then, notwithstanding anything contained in this Act, any reference in Section 15, Section 17, Section 19, Section 33-A, Section 33-B and Section 36-A to the appropriate Government in relation to such dispute shall be 8 W.P.No.5166/2015 construed as a reference to the Central Government but, save as aforesaid and as otherwise expressly provided in this Act, any reference in any other provision of this Act to the appropriate Government in relation to that dispute shall mean a reference to the State Government.
(8) No proceedings pending before a Labour Court, Tribunal or National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman, and such Labour Court, Tribunal or National Tribunal shall complete such proceedings and submit its award to the appropriate Government."
11. Therefore, it is clear that a reference can be made by the Central Government at any point of time and thus it is held that the reference against the punishment order of the petitioner was not barred by time.
12. So far as the question of unauthorized absence of respondent for a period of 52 days is concerned, this Court if of the opinion that the award passed by the CGIT is not happily worded. No specific findings have been recorded after reproducing the evidence of the witness of the management.
13. Be that whatever it may be.
14. One thing is clear that the only allegations against respondent was that he was on unauthorized absence for a period of 52 days.
15. Under these circumstances, this Court is of the considered opinion that removal of the respondent from service only on the aforesaid charge is shocking to the concise of the Court as well as 9 W.P.No.5166/2015 disproportionate and, therefore the CGIT did not commit any mistake by interfering in the matter.
16. Since, the reference was made after 13 years of the removal, therefore the CGIT has rightly not granted back wages to the respondent.
17. As no case is made out warranting interference, accordingly, petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE vinay* VINAY KUMAR BURMAN 2023.10.10 18:47:50 +05'30'