Kerala High Court
Alleppey District Consumers Wholesale ... vs Labour Court And Anr. on 13 October, 1995
Equivalent citations: (1998)IIILLJ469KER
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT Shanmugam, J.
1. Petitioner in the Original Petition is the appellant, a Co-operative Society engaged mainly in the distribution of foodgrains and other rationed articles under the provisions of the Kerala Rationing Order. The dismissal of an employee of the Society (2nd respondent herein) was set aside by the Labour Court in I.D.No. 116/1978 and the learned single Judge declined to interfere in the said award. The appeal is against this judgment.
2. Briefly stated the facts of the case are that the 2nd respondent Sri P.B.Jacob was working as the Supervisory Assistant with the appellant-Society. By Ext.P2 proceedings dated December 17, 1976 he was transferred and posted as Branch Manager of Branch No. 17. The 2nd respondent took charge of the Branch and after attending the work till Decembers 1, 1976 closed the Ration Shop in the forenoon of December 31, 1976, without making any arrangements for opening the Ration Shop on January 1, 1977. Finding the Ration Shop closed, the Taluk Supply Officer on inspection suspended the licence of the Society and it was cancelled by the Civil Supplies Department later. Disciplinary proceedings were intiated against the 2nd respondent and after conducting a domestic enquiry and finding him guilty, he was dismissed from service by order dated June 17, 1977. The appeal filed by the 2nd respondent before the Board of Management was also dismissed. Thereafter an industrial dispute was raised by the Alleppey District Consumers Wholesale Co-operative Employees Association representing the 2nd respondent and the Labour Court in I.D. No. 116/78 by its peliminary order dated January 9, 1980 found that the domestic enquiry was defective and thereafter taking evidence found the 2nd respondent guilty of deriliction of duty in not keeping the Ration Shop open on January 1, 1977. But however, the Labour Court reduced the punishment from dismissal to that of stoppage of two increments by its award dated May 31, 1982.
3. As against the said award of the Labour Court the Management/Appellant filed O.P. No. 7427/82 and the 2nd respondent filed O.P. 9246/82 before this Court. By a common judgment dated November 27, 1984 the learned Judge stated that the question whether the posting of the 2nd respondent as Depot Manager was for a specific period and for a specific purpose assumes great importance in considering the question of guilty of desertion of post. If the answer is in the negative no punishment can be imposed on him and if the answer is in the affirmative the punishment of stoppage of two increments is grossly inadequate. Therefore, this Court set aside the award and directed the Labour Court to pass a fresh award to consider the question whether the posting of the 2nd respondent as Manager of Branch No. 17 was for a short period or not.
4. After the remand the Labour Court considered the matter afresh and passed an award dated February 28, 1987 holding that the posting of the 2nd respondent as Depot Manager was for a short period and that the 2nd respondent was not guilty of deriliction of duty. In view of these findings the Labour Court directed reinstatement of the 2nd respondent with ail backwages and continuity of service.
5. The Management filed O. P. No. 6659/87 against this award. The learned single Judge held that on a perusal of the transfer order Ext. P2 it cannot be stated that the transfer was for a specific purpose or for a specific period. However, the learned Judge was persuaded on the finding of the Labour Court on Ext.P2 read with the evidence of M.W. 2 who had been directed to take charge from the 2nd respondent in January 1, 1977, to accept the finding that the posting was for a specific period and for a specific purpose. When the learned counsel appearing on behalf of the appellant herein submitted that M.W. 2 did not state so, the learned Judge on the assertion made on behalf of the respondent that what was stated by the Labour Court in reference to M.W. 2 is correct and M.W. 2 has stated so very clearly, confirmed the findings of the Labour Court and dismissed the O.P.
6. We have heard the counsel and gone through the records. As held by the learned Judge the scope of enquiry in the O.P. was limited viz. whether after considering Ext. P2 transfer arid posting order along with the evidence of M.W. 2, the question whether posting of the 2nd respondent was for a short period and whether he has committed deriliction of duty in deserting his post. The learned Judge held that the Labour Court has adverted to the fact that the management had asked M.W. 21 to take charge from the workman, and since the said findings which were recorded are correct no interference under Article 226 is called for. The learned Judge also went on to say that even though the counsel for the appellant was unable to furnish a certified copy of the deposition of M.W. 2, since the counsel for the 2nd respondent submitted that what is stated by the Labour Court is correct and that M.W. 2 had stated so very clearly, the learned Judge did not find any merit in the 0. P.
7. Now the appellant has furnished a copy of the deposition of M.W. 2 and we do not find any such statement from M.W.2. On the contrary what he stated was that he had handed over the charge to the 2nd respondent herein on December 17, 1976. Learned counsel for the respondent at this stage submitted that it is not M.W. 2's statement that has to be read along with Ext. P2 and it is W.W. 2's statement that has to be read along with Ext. P2 and the statement in the award is factually a mistake. Even though the Labour Court as well as the learned single Judge based their findings on M.W. 2, in order to satisfy us we went through the deposition of W.W. 2 which was made available along with the counter-affidavit by the 2nd respondent. In the said statement W.W. 2 who was the witness examined on the side of the Union stated in his Chief Examination that he came to the Head Office on July 1, 1977 on the request made by the Managing Director (M. D., for short) through telephonic message. When he met the M.D. at 12.30 p.m. on July 1, 1977 he was told that he had to take charge before noon and start the supply before 3.30 p.m. He was asked to wait. And at 1 p.m. P.B. Jacob (2nd respondent) came to the M.D.'s room and replied to the M.D.'s question that he came to hand over the key and the stock sheet of store No. 17. In cross-examination he stated that if the shop is not opened the licence would be cancelled. He further stated that the person who comes to take charge and the person who leaves the charge will weigh the commodities in the depot in the presence of the Supervisors and the commodities would be handed over to the person who has come to take charge. But the Managers would sign the stock sheet and each of them would keep copies of the stock sheet. One copy of the stock sheet would be given to the Head Office. Key would be handed over to the new Manager in the presence of the Supervisor.
8. From the deposition of W.W. 2 it is clear that the 2nd respondent did not open the shop on July 1, 1977 and did not follow the formalities of handing over charge and getting relieved from the Branch as per the procedure of the Society. It is also admitted that the 2nd respondent came to the Head Office of the Society only at 1 O'clock on July 1, 1977. Therefore it is clear case where the 2nd respondent who was put in charge by Ext. P2 did not open the shop on July 1, 1977 and the same was not properly handed over and got relieved.
9. But for the evidence of M.W. 2 and W.W. 2, Ext. P2 transfer order would not show that it was for a short or specific period and for a speciilc purpose. Assuming for a moment that Ext. P2 order was for a specific purpose of slock verification in as much as he was posted as a Branch Manager and that was done as a proceeding for transfer and posting and the order does not indicate that, he would automatically be relieved after stock verification was over. Since the Society's branch office was dealing with rationed essential commodities, the 2nd respondent ought not have on his own closed the shop without properly relieving himself. Therefore, the finding of the Labour Court that the 2nd respondent was not guilty of deriliction of duty is not supported by any evidence.
10. It is contended on behalf of the respondent that the factual finding of the Labour Court may not be unsettled. We have found that the learned judge while supporting the contention of the appellant that Ext. P2 alone cannot make the transfer fora specific period, held that the finding of the Labour Court coupled with the evidence of M.W- 2 requires no interference. But we have found from the records that there is no legal evidence and the finding suffers from the infirmity of non-application of mind.
11. The Supreme Court in Rajinder Kumar v. Delhi Administration, (1984-II-LLJ-517) held that it is well-settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under Section 10-A or the Supreme Court in appeal under Article 136 can reject such findings as perverse. Holding that the findings are perverse does not constitute reappraisal of evidence, though the Court would have been perfectly justified in exercise of powers conferred by Section 11-A to do so. The Supreme Court further held that it is equally well-settled that where a quasi-judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.
12. In S.M. Sugar Works Lid. v. Shobrati, (1959-II-LLJ-388) the Supreme Court interfered with the findings of the Industrial Tribunal on the ground that it rendered a patently perverse finding in spite of evidence available.
13. In Agnani v. Badri Das (1963-I-LLJ-684) the Supreme Court held that the law in relation to the limits of the jurisdiction of the High Court in entertaining a plea for a writ of certiorari under Article 226 of the Constitution is well-settled. In order to justify the issue of a writ of certiorari it must be shown that the impugned order suffers from an error apparent on the face of the record. It is clear that the error must be an error of law, not an error of fact, because an error of fact, though serious, and though it may be apparent on the face of the record, cannot sustain a claim for the writ of certiorari. It is only errors of law that justify the issue of the said writ, provided, of course, they are of such a character as would reasonably be treated as errors apparent on the face of the record. If a finding of fact is made by the impugned order and it is shown that it is based on no evidence, that would no doubt be a point of law open to be urged under Article 226.
13A. The Supreme Court in Gujarat Steel Tubes Ltd. v. Mazdoor Sahha (1980-I-LLJ-137) while dealing with the power under Article 226 of the High Court held as follows:
"Under Article 226 the power of the High Court is broad enough so that on finding the order petitioned against wrong the High Court can substitute its own order. So what the Tribunal may, in its discretion, do, the High Court too, under Art. 226 can, if facts compel, do."
14. In the instant case we find that the Labour Court has acted without any evidence and totally contrary to the evidence available on record, as set out above. The learned single Judge was of the opinion, that if that finding recorded by the Labour Court is not correct, then it is a case to be interfered with. From the facts and circumstances of the case on record we have no hesitation in holding that the case of the appellant has been established and therefore the award of the Labour Court and the judgment of the learned single Judge are to be set aside. We do so.
15. Yet another aspect raised on behalf of the respondent is that even assuming that the punishment imposed by the management was upheld, the date of dismissal cannot relate back to the date of the management's order of dismissal. According to the respondent, he is entitled to salary for the period from the date of dismissal to the date of award. The respondent was dismissed from service on and from June 17, 1977 and the award was passed on February 28, 1987. The respondent attained superannuation on July 31, 1978. Therefore, according to him, even if he were to be dismissed, he could be dismissed only from February 28, 1987 and he is entitled to all backwages till that period. Before considering this aspect, an important fact which is to be taken note of is that by the proceedings of the Society the 2nd respondent was ordered to be reinstated in service as Depot Manager with continuity of service from January 1, 1977 with full backwages from September 25, 1982, subject to the disposal of the O.P. No 7427/82 pending before the High Court. The 2nd respondent by his letter dated November 29, 1982 declined this offer and instead requested that he may be appointed in the category of Inspector which post he would have occupied if he had continued in service. The Society again wrote another letter dated December 31, 1982 stating that they fully complied with the directions in the award passed by the Labour Court subject to the final results of the O.P. pending before the High Court. They also stated that since he has failed to report for duty as per the orders issued earlier he is not entitled to any arrears of salary and intended to take appropriate disciplinary proceedings for the wilful refusal to report for duty. The Society further made it clear that before initiating such proceedings he was given one more opportunity, to report for duty within five days from December 30, 1982. For this letter also the 2nd respondent replied stating that he would not be interested in joining as Branch Manager until he is reinstated as Inspector of a Senior Clerk which post he would have held if he were not dismissed from service. From the above it is clear that in spite of the offer made by the Society to post him as Branch Manager, the post which he had held when he was dismissed from service, the 2nd respondent did not avail the opportunity thereby forfeited his right to claim any backwages.
16. A Constitution Bench of the Supreme Court in P.H. Kalyani v. Air France, Calcutta (1963-I-LLJ-679) in reference to the question of relating back to the date of the order, held as follows at p 683 :
"If the enquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made."
While distinguishing the decision in Sana Musa Sugar Company's case (1959-II-LLJ-388) the Supreme Court further held as follows at p 684 :
"In that case the dismissal of the employee takes effect from the date of the award and so until then the relation of employer and employee continues in law and in fact, in the present case an inquiry has been held which is said to be detective in one respect and dismissal has been ordered. The respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the inquiry. It has succeeded in doing so and therefore the approval of the Labour Court will relate back to the date on which the respondent passed the order of dismissal. The contention of the appellant therefore that dismissal in this case should take effect from the date from which the Labour Court's award came into operation must fail."
17. In D.C. Roy v. Presiding Officer 1976 3 SCC 693, the Supreme Court held that though the Labour Court found that the inquiry was defective as it infringed the principles of natural justice, it came to the conclusion after considering the evidence adduced before it, that the dismissal was justified. The award of the Labour Court there would relate back to the date when the order of dismissal was passed on the termination of the domestic inquiry. The Supreme Court made a distinction between an inquiry conducted without complying with the principles of natural justice and a situation where there was total absence of any inquiry for determinating whether the theory of 'relation-back' has any application. The principles stated in the above decisions were approved in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (supra) by the Supreme Court in the following words :
"The jurisprudential difference between a void order, which by a subsequent judicial resuscitation comes into being de novo, and an order, which may suffer from some defects but is not still-born or void and all that is needed in the law to make it good is a subsequent approval by a Tribunal which is granted, cannot be obfuscated."
18. Learned counsel further referred to the decision in Desh Raj Gupta v. Industrial Tribunal IV, U.P. (1991-I-LLJ-120) for the proposition that the dismissal cannot relate back to the date of illegal order of the employer. The Supreme Court in Desh Raj Gupta's case did not consider the question of distinction made by the decision in Gujarat Steel Tubes Ltd.(supra) between defective enquiry and void enquiry.
19. In the instant case domestic enquiry was conducted. However, it was found by the Labour Court in its preliminary order dated January 9, 1980 that the enquiry was defective and also ordered reinstatement as per the award after taking evidence.
20. Now that we have set aside the award and judgment of the learned single Judge, the dismissal will relate back to the date of dismissal ordered by the management. In holding so we have also taken note of the fact that the 2nd respondent has declined the offer of appointment and that pending the O.P. the 2nd respondent has been paid a sum of Rs. 77,500/- towards backwages out of his total claim of Rs. 1,20,116/-. He has since attained superannuation on July 31, 1978. Taking into account all the facts and circumstances of the case we do not consider that the 2nd respondent must be deemed to be dismissed only from the date of the award. However, we make it clear that the amount paid to the 2nd respondent viz. Rs. 77,500/- shall not be recovered by virtue of our judgment.
For all these reasons we allow the appeal with the above direction.