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Sunday, September 14, 2014

Service Matter - Removed from service as the Conductor misappropriated the Tickets amounts - Criminal case resulted in Acquittal - entitled for reinstatement - Filed petition in Labour court for reinstatement after acquittal - Decided as Time Barred - Apex court held that in Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi (supra) and observed: Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too...... In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.” In view of the foregoing reasons, the award of the Labour Court and the judgment & order of the High Court are highly erroneous in law. Therefore, the same are required to be interfered with by this Court in exercise of the appellate jurisdiction as there is miscarriage of justice for the workman in this case. The respondent is directed to reinstate the appellant-workman with back wages from the date of raising the industrial dispute i.e. 02.03.2005 till the date of his reinstatement with all consequential benefits such as continuity of service, wage revisions and other statutory monetary benefits as the respondent has been litigating the dispute without tenable and acceptable reason; and Since the appellant-workman was compelled to take on this long battle of litigation to get his rights enforced from the Court of law, the respondent is directed to implement this order within six weeks from the date of receipt of the copy of this Judgment.= CIVIL APPEAL NO. 8434 OF 2014 (Arising out of SLP(C) NO. 22487 of 2012) RAGHUBIR SINGH ………APPELLANT Vs. GENERAL MANAGER, HARYANA ROADWAYS, HISSAR ………RESPONDENT = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41871

Service Matter - Removed from service as the Conductor misappropriated the Tickets amounts - Criminal case resulted in Acquittal - entitled for reinstatement -  Filed petition in Labour court for reinstatement after acquittal - Decided as Time Barred - Apex court held that in  Surendra  Kumar
Verma v. Central Government Industrial Tribunal-cum-Labour Court, New  Delhi
(supra) and observed: Plain common sense dictates that  the  removal  of  an order terminating the services  of  workmen  must  ordinarily  lead  to  the reinstatement of the services of the workmen. 
It is  as  if  the  order  has never been, and so it must ordinarily lead to back  wages  too......
In  such and other exceptional cases the court may mould the relief, but,  ordinarily
the relief to be awarded must be reinstatement with full  back  wages.  
That relief must be awarded where no special impediment in the  way  of  awarding
the relief is clearly shown. True, occasional hardship may be caused  to  an employer but we must remember that, more often than not,  comparatively  far greater hardship is certain to be caused to the workmen  if  the  relief  is denied than to the employer if the relief is granted.”  In view of the foregoing reasons, the award of the Labour Court and  the judgment & order of the High Court are highly erroneous in  law.  Therefore, the same are required to be interfered with by this  Court  in  exercise  of the appellate jurisdiction as  there  is  miscarriage  of  justice  for  the
workman in this case. The respondent is directed to  reinstate  the  appellant-workman  with  back
wages from the date of raising the industrial dispute i.e.  02.03.2005  till the date of his  reinstatement  with  all  consequential  benefits  such  as continuity of service, wage revisions and other statutory monetary  benefits as the respondent has  been  litigating  the  dispute  without  tenable  and acceptable reason; and Since the appellant-workman was compelled to take on  this  long  battle  of litigation to get his rights enforced from the Court of law, the  respondent
is directed to implement this order  within  six  weeks  from  the  date  of receipt of the copy of this Judgment.=

In 1976, the appellant joined  the  Haryana  Roadways  as  a  conductor.  On
10.08.1993, the appellant was charged under Section 409 of the Indian  Penal
Code in a criminal case at  the  instance  of  the  respondent  for  alleged
misappropriation of the amount collected from  tickets  and  not  depositing
the cash in relation to the same in time.
The appellant was arrested by  the
Jurisdictional police and sent to judicial custody on  15.09.1994.
 Further,
on 21.10.1994 the services of the appellant were terminated by  the  General
Manager, Haryana Roadways, Hissar, the  respondent  herein.
On  15.11.1994,
the appellant upon being released on bail was given  an  oral  assurance  by
the respondent that he will be reinstated to the post  after  his  acquittal
by the Court.

4. On 11.07.2002, upon being acquitted by the Court of Judicial  Magistrate,
First Class, Hissar, in Crl. Case No. 33-I of 1994, the  appellant  reported
to join his duty, but he was informed by the respondent  that  his  services
stood terminated w.e.f. 21.10.1994.
.=
 After  adjudication  of  the
points of dispute referred to it, the Labour  Court  vide  its  award  dated
22.05.2009 declared that the termination of the appellant from his  services
was illegal and passed an award of reinstatement of the appellant  with  60%
back wages from the date of issuance of demand notice  till  publication  of
the award and full back wages thereafter, till reinstatement.

5. Aggrieved by the same, the respondent-Haryana Roadways filed  C.W.P.  No.
13366 of 2009 before the High Court of Punjab  and  Haryana  at  Chandigarh.
The High Court vide its order dated 01.04.2010 set  aside  the  award  dated
22.05.2009 and remanded  the  case  back  to  the  Labour  Court  for  fresh
adjudication in the light of the applicability of the provisions of  Article
311(2)(b) of the Constitution of India, to the appellant/workman.

6. The Labour Court vide its award dated 17.05.2011 in  R.M.  No.3  of  2010
answered the reference by passing an award  against  the  appellant  on  the
ground that the reference of the industrial  dispute  is  time  barred. =
 in  Surendra  Kumar
Verma v. Central Government Industrial Tribunal-cum-Labour Court, New  Delhi
(supra) and observed: 
Plain common sense dictates that  the  removal  of  an
order terminating the services  of  workmen  must  ordinarily  lead  to  the
reinstatement of the services of the workmen. 
It is  as  if  the  order  has
never been, and so it must ordinarily lead to back  wages  too......
In  such
and other exceptional cases the court may mould the relief, but,  ordinarily
the relief to be awarded must be reinstatement with full  back  wages.  
That
relief must be awarded where no special impediment in the  way  of  awarding
the relief is clearly shown. 
True, occasional hardship may be caused  to  an
employer but we must remember that, more often than not,  comparatively  far
greater hardship is certain to be caused to the workmen  if  the  relief  is
denied than to the employer if the relief is granted.”

        (Emphasis supplied by this Court)


40. The above critical analysis of law laid down by this Court in  the  case
referred to supra, is very much relevant to  the  case  on  hand,  which  is
neither discussed nor considered and examined  by  the  courts  below  while
answering the reference made by the State Government and passing the  award,
judgments & orders in a cavalier manner.
Thus, the lives  of  the  appellant
and his family members have been hampered. Further, on  facts,  we  have  to
hold that the order of termination passed is highly disproportionate to  the
gravity of misconduct and therefore shocks the  conscience  of  this  Court.
Hence, we hold that the appellant is entitled for the reliefs as  prayed  by
him in this appeal.

41. In view of the foregoing reasons, the award of the Labour Court and  the
judgment & order of the High Court are highly erroneous in  law.  Therefore,
the same are required to be interfered with by this  Court  in  exercise  of
the appellate jurisdiction as  there  is  miscarriage  of  justice  for  the
workman in this case.

42. It is an undisputed fact that the dispute  was  raised  by  the  workman
after he was acquitted in the criminal  case  which  was  initiated  at  the
instance of the respondent.
Raising the  industrial  dispute  belatedly  and
getting the same referred from the State Government to the Labour  Court  is
for justifiable reason and the same is supported by law laid  down  by  this
Court in Calcutta Dock Labour Board (supra). 
Even assuming for the  sake  of
the argument that there was a certain delay and latches on the part  of  the
workman in raising the industrial dispute and getting  the  same  referenced
for adjudication, the Labour Court is statutorily duty bound to  answer  the
points of dispute referred to it by adjudicating the same on merits  of  the
case and it ought to have moulded the relief appropriately in favour of  the
workman. 
That has not been done  at  all  by  the  Labour  Court.
Both  the
learned single Judge as well as the Division Bench of the High Court in  its
Civil Writ Petition and the Letters Patent Appeal have  failed  to  consider
this important aspect of the matter.
Therefore, we are of the view that  the
order of termination passed by the  respondent,  the  award  passed  by  the
Labour Court and the judgment & order of the High Court  are  liable  to  be
set aside.
When we arrive at the aforesaid conclusion, the  next  aspect  is
whether  the  workman  is  entitled  for  reinstatement,  back   wages   and
consequential benefits.
We  are  of  the  view  that  the  workman  must  be
reinstated. However, due to delay in raising  the  industrial  dispute,  and
getting it referred to the Labour  Court  from  the  State  Government,  the
workman will be entitled in law  for  back  wages  and  other  consequential
benefits  from  the  date  of  raising  the  industrial  dispute  i.e.  from
02.03.2005 till reinstatement with all consequential benefits.

43. For the foregoing  reasons,  we  grant  the  following  reliefs  to  the
workman by allowing this appeal:
The award of the Labour Court, judgment and orders passed by the High  Court
are set aside;
The respondent is directed to  reinstate  the  appellant-workman  with  back
wages from the date of raising the industrial dispute i.e.  02.03.2005  till
the date of his  reinstatement  with  all  consequential  benefits  such  as
continuity of service, wage revisions and other statutory monetary  benefits
as the respondent has  been  litigating  the  dispute  without  tenable  and
acceptable reason; and
Since the appellant-workman was compelled to take on  this  long  battle  of
litigation to get his rights enforced from the Court of law, the  respondent
is directed to implement this order  within  six  weeks  from  the  date  of
receipt of the copy of this Judgment.

The appeal is allowed. No costs.

2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41871

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO. 8434  OF 2014
                  (Arising out of SLP(C) NO. 22487 of 2012)

RAGHUBIR SINGH                                ………APPELLANT
                                     Vs.
GENERAL MANAGER,
HARYANA ROADWAYS, HISSAR                     ………RESPONDENT

                               J U D G M E N T
      Leave granted.
2. This appeal has been filed by  the  appellant  against  the  order  dated
09.01.2012 passed by the High Court of Punjab and Haryana at  Chandigarh  in
L.P.A. No. 20 of 2012, whereby the  High  Court  dismissed  the  L.P.A.  and
affirmed the order dated 14.11.2011 passed by the learned  Single  Judge  of
the High Court in the C.W.P. No.20996 of 2011, urging various grounds.

3. The necessary relevant facts are stated hereunder to appreciate the  case
of the appellant and to ascertain whether the appellant is entitled for  the
relief as prayed in this appeal.

In 1976, the appellant joined  the  Haryana  Roadways  as  a  conductor.  On
10.08.1993, the appellant was charged under Section 409 of the Indian  Penal
Code in a criminal case at  the  instance  of  the  respondent  for  alleged
misappropriation of the amount collected from  tickets  and  not  depositing
the cash in relation to the same in time. The appellant was arrested by  the
Jurisdictional police and sent to judicial custody on  15.09.1994.  Further,
on 21.10.1994 the services of the appellant were terminated by  the  General
Manager, Haryana Roadways, Hissar, the  respondent  herein.  On  15.11.1994,
the appellant upon being released on bail was given  an  oral  assurance  by
the respondent that he will be reinstated to the post  after  his  acquittal
by the Court.

4. On 11.07.2002, upon being acquitted by the Court of Judicial  Magistrate,
First Class, Hissar, in Crl. Case No. 33-I of 1994, the  appellant  reported
to join his duty, but he was informed by the respondent  that  his  services
stood terminated w.e.f. 21.10.1994. The appellant served the  demand  notice
upon the respondent which was not acceded to and therefore,  the  industrial
dispute with regard to order of termination from  his  services  was  raised
before the conciliation officer. On failure of the conciliation  proceedings
before him, the industrial dispute was referred by the State  Government  in
exercise of its statutory power under Section 10 (1) (c) of  the  Industrial
Disputes Act, 1947 (for short ‘the Act’) to the  Labour  Court,  Hissar  for
adjudication of the existing industrial dispute in relation to the order  of
dismissal of the appellant from his  services.  After  adjudication  of  the
points of dispute referred to it, the Labour  Court  vide  its  award  dated
22.05.2009 declared that the termination of the appellant from his  services
was illegal and passed an award of reinstatement of the appellant  with  60%
back wages from the date of issuance of demand notice  till  publication  of
the award and full back wages thereafter, till reinstatement.

5. Aggrieved by the same, the respondent-Haryana Roadways filed  C.W.P.  No.
13366 of 2009 before the High Court of Punjab  and  Haryana  at  Chandigarh.
The High Court vide its order dated 01.04.2010 set  aside  the  award  dated
22.05.2009 and remanded  the  case  back  to  the  Labour  Court  for  fresh
adjudication in the light of the applicability of the provisions of  Article
311(2)(b) of the Constitution of India, to the appellant/workman.

6. The Labour Court vide its award dated 17.05.2011 in  R.M.  No.3  of  2010
answered the reference by passing an award  against  the  appellant  on  the
ground that the reference of the industrial  dispute  is  time  barred.  The
appellant challenged the correctness of the said award  by  filing  a  Civil
Writ Petition No.20996 of 2011 before the High Court,  which  was  dismissed
on 14.11.2011 by the learned single Judge of the  High  Court  holding  that
the decision of the disciplinary authority  of  the  respondent  is  in  the
public interest and therefore, the same does not warrant interference.

7. The appellant thereafter filed Letters  Patent  Appeal  No.  20  of  2012
before the Division Bench of  the  High  Court  against  the  order  of  the
learned single Judge. The same was dismissed vide order dated 09.01.2012  on
the ground that the  services  of  the  appellant  were  terminated  by  the
respondent on 21.10.1994 in exercise of the powers conferred upon  it  under
the  provisions  of    Article  311(2)(b)  of  the  Constitution  of  India,

whereas the appellant had raised the  industrial  dispute  vide  the  demand
notice in the year, 2002. The Division Bench of  the  High  Court  found  no
illegality or irregularity in the impugned judgment passed  by  the  learned
single Judge of the High Court.

8. Aggrieved by the impugned judgment and  order  dated  09.01.2012  of  the
High Court of Punjab and  Haryana,  the  appellant  has  filed  this  appeal
urging various grounds.

9. It has been contended by the learned counsel for the appellants that  the
services of the appellant was illegally terminated from his services on  the
ground of alleged misconduct of unauthorised absence,  and  no  enquiry  was
conducted before the termination of services of the appellant.  Further,  it
is contended that the reasons accorded by the respondent are  not  justified
for dispensing with the inquiry procedure in  relation  to  the  allegations
against the appellant and invoking the provisions of  Article  311(2)(b)  of
the Constitution of India and the respondent had terminated the services  of
the appellant without complying with the principles of natural justice.

10. The learned Additional Advocate General for the State  of  Haryana,  Mr.
Narender Hooda has vehemently contended that the Labour Court was  right  in
rejecting the reference of the industrial dispute being on the  ground  that
it was barred by limitation by answering  the  additional  issue  No.  2  by
placing reliance upon the decision of this Court in the  case  of  Assistant
Engineer, Rajasthan State Agriculture Marketing  Board,  Sub-Division,  Kota
v. Mohan Lal[1] wherein this Court has held as under:-
   “19. We are clearly of the view that though Limitation Act, 1963  is  not
applicable to the reference made under the Industrial  Disputes  Act,  1947,
but  delay  in  raising  industrial  dispute  is  definitely  an   important
circumstance which the Labour Court must keep  in    view  at  the  time  of
exercise of discretion irrespective of whether or  not  such  objection  has
been raised by the        other side. The legal position          laid  down
by   this   Court   in          Assistant    Engineer, Rajasthan Development
Corporation  and  Anr. v.  Gitam  Singh   (2013)   5 SCC 136   that   before
exercising its judicial discretion, the Labour Court has  to  keep  in  view
all relevant factors including the mode and manner  of  appointment,  nature
of employment, length of service, the ground on which termination  has  been
set aside and the delay  in  raising  industrial  dispute  before  grant  of
relief in an industrial dispute, must be invariably followed.”


11. In our view of the facts and circumstances of  the  case  on  hand,  the
reference was  made  by  the  State  Government  to  the  Labour  Court  for
adjudication of the existing industrial dispute; it has erroneously held  it
to be barred by limitation. This award was further erroneously  affirmed  by
the High Court, which is bad in law and therefore the same is liable  to  be
set  aside.   According  to  Section  10(1)  of  the  Act,  the  appropriate
government ‘at any time’ may refer an industrial dispute  for  adjudication,
if it is of the opinion that such an industrial dispute between the  workman
& the employer exists or is apprehended. Section 10(1) reads as follows:

“10(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


(b) refer any matter appearing to be  connected  with  or  relevant  to  the
dispute to a court for inquiry; or


(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.”



            Thus, it is necessary for us to  carefully  observe  the  phrase
‘at any time’ used  in  this  section.  Therefore,  there  arises  an  issue
whether the question of limitation is applicable to  the  reference  of  the
existing industrial dispute that would  be  made  by  the  State  Government
either to the Labour Court or Industrial Tribunal for  adjudication  at  the
instance of the appellant. This Court in Avon Services  Production  Agencies
(Pvt.) Ltd. v. Industrial Tribunal, Haryana &  Ors.[2],  after  interpreting
the phrases ‘at any time’ rendered in Section 10(1) of the Act, held thus:-
“7…….Section 10(1) enables the appropriate Government to make  reference  of
an industrial dispute which exists or is apprehended at any time to  one  of
the authorities mentioned in the section. How and in what manner or  through
what  machinery  the  Government  is  apprised  of  the  dispute  is  hardly
relevant.……The only requirement for  taking  action  under  Section 10(1) is
that there must be some material before the  Government  which  will  enable
the appropriate Government to form an  opinion  that  an  industrial dispute
exists or  is  apprehended.  This  is  an  administrative  function  of  the
Government as the expression is understood in contradistinction to  judicial
or quasi-judicial function…”



           Therefore, it is implicit from the above case  that  in  case  of
delay in raising the industrial dispute, the  appropriate  government  under
Section 10(1) of the Act has the power, to make reference to  either  Labour
Court or Industrial Tribunal, if it is of the opinion  that  any  industrial
dispute exists or is apprehended at any time, between the  workman  and  the
employer. Further, in Sapan Kumar Pandit v. U.P. State Electricity  Board  &
Ors.[3], it is held by this Court as under:-
“15.There are cases in which  lapse  of  time  had  caused  fading  or  even
eclipse of the dispute. If nobody had kept  the  dispute  alive  during  the
long interval it is reasonably possible to conclude  in  a  particular  case
that the dispute ceased to exist after  some  time.  But  when  the  dispute
remained alive though not galvanized by the workmen or the Union on  account
of other justified reasons it does not cause the dispute to wane into  total
eclipse. In this case when the Government have chosen to refer  the  dispute
for adjudication under Section4K of the U.P. Act the High Court  should  not
have quashed the reference merely on the ground of  delay.  Of  course,  the
long  delay  for  making  the  adjudication  could  be  considered  by   the
adjudicating authorities while moulding its reliefs.  That  is  a  different
matter altogether. The High Court has obviously gone  wrong  in  axing  down
the order of reference made by the  Government  for  adjudication.  Let  the
adjudicatory process reach its legal culmination.”
                                                (Emphasis laid by the court)


12. Therefore, in our considered view, the observations made by  this  Court
in the Rajasthan State Agriculture Marketing Board case (supra)  upon  which
the learned Additional Advocate General for the State of Haryana has  placed
reliance cannot be applied to the fact situation of the case  on  hand,  for
the reason that the Labour Court  has  erroneously  rejected  the  reference
without judiciously  considering  all  the  relevant  factors  of  the  case
particularly the points of dispute referred  to  it  and  answered  the  2nd
issue regarding the reference being barred by  limitation  but  not  on  the
merits of the case. The  said  decision  has  no  application  to  the  fact
situation and also for the reason the catena  of  decisions  of  this  Court
referred to supra, wherein  this  Court  has  categorically  held  that  the
provisions of Limitation Act under Article 137 has no  application  to  make
reference by the  appropriate  government  to  the  Labour  Court/Industrial
Tribunal for adjudication of existing  industrial  dispute  between  workmen
and the employer.

13. In the case on hand, no doubt there is a delay in  raising  the  dispute
by the appellant; the Labour Court nevertheless has the power to  mould  the
relief accordingly. At the time of adjudication, if the dispute referred  to
the Labour Court is not adjudicated  by  it,  it  does  not  mean  that  the
dispute ceases to exist. The  appropriate  government  in  exercise  of  its
statutory power under Section 10(1)(c) of the Act can refer  the  industrial
dispute, between the parties, at any  time,  to  either  the  jurisdictional
Labour Court/Industrial Tribunal as interpreted by this Court  in  the  Avon
Services case  referred  to  supra.  Therefore,  the  State  Government  has
rightly exercised its power under Section 10(1)(c) of the Act  and  referred
the points of dispute to the Labour Court as  the  same  are  in  accordance
with the law laid down by this Court in Avon Services & Sapan  Kumar  Pandit
cases referred to supra.

14. Further, the workman cannot be denied to seek relief only on the  ground
of delay in raising the dispute as held in  the  case  of  S.M.  Nilajkar  &
Ors. v. Telecom District Manager, Karnataka[4]   it was held  by this  Court
as follows-
“17. It was submitted on behalf of the respondent that on account  of  delay
in raising the dispute by the appellants the High  Court  was  justified  in
denying relief to the appellants. We cannot  agree......  In  Ratan  Chandra
Sammanta and Ors. v. Union of India and Ors. (supra)1993 AIR  SCW  2214,  it
was held that a casual labourer retrenched by the employer deprives  himself
of remedy available in law by delay itself, lapse of time results in  losing
the remedy and the right as well. The delay would certainly be fatal  if  it
has resulted in material evidence relevant to adjudication  being  lost  and
rendered not available. However, we do not think that the delay in the  case
at hand has been so  culpable  as  to  disentitle  the  appellants  for  any
relief.....”
                                                (Emphasis laid by the Court)

In view of the legal principles  laid  down  by  this  Court  in  the  above
judgment, the reference of the industrial dispute made in the case  on  hand
by the State Government to the  Labour  Court  to  adjudicate  the  existing
industrial dispute between the parties was made within  a  reasonable  time,
considering the circumstances in which the workman was placed,  firstly,  as
there was a criminal case pending against him and secondly,  the  respondent
had assured the workman that he would  be  reinstated  after  his  acquittal
from the criminal  case.  Moreover,  it  is  reasonable  to  adjudicate  the
industrial dispute in spite of  the  delay  in  raising  and  referring  the
matter, since there is no mention of any loss or unavailability of  material
evidence due to the delay. Thus, we do not consider  the  delay  in  raising
the industrial dispute and referring  the  same  to  the  Labour  Court  for
adjudication as gravely erroneous and it does not  debar  the  workman  from
claiming rightful relief from his employer.

15. In the case of Ajaib Singh v. The Sirhind  Co-Operative  Marketing  Cum-
Processing Service Society Limited & Anr.[5]  this  Court  has  opined  that
relief cannot be denied to the  workman  merely  on  the  ground  of  delay,
stating that:-

“10. It follows,  therefore,  that  the  provisions  of  Article 137 of  the
Schedule to Limitation Act, 1963  are  not  applicable  to  the  proceedings
under the act and that the relief under it cannot be denied to  the  workman
merely on the ground of delay. The plea of delay if raised by  the  employer
is required to be proved as a matter of fact by showing the  real  prejudice
and not as a merely hypothetical defence. No reference to the  labour  court
can be generally questioned on the ground of delay alone.  Even  in  a  case
where the delay in shown to be  existing,  the  tribunal,  labour  court  or
board,  dealing  with  the  case  can  appropriately  mould  the  relief  by
declining to grant back wages to the workman till the  date  he  raised  the
demand regarding his illegal retrenchment/  termination  or  dismissal.  The
Court may also in appropriate cases direct the payment of part of  the  back
wages instead of full back wages.....”


                                                (Emphasis laid by the Court)







16.  Hence,  we  are  of  the  opinion,  having  regard  to  the  fact   and
circumstances of the case that there is no delay or latches on the  part  of
the  workman  from  the  date  of  his  acquittal  in  the  criminal   case.
Thereafter, upon failure of the respondent  in  adhering  to  the  assurance
given to the workman that he would be reinstated after  his  acquittal  from
the criminal case, the workman approached the conciliation officer  and  the
State Government to make a reference to the Labour  Court  for  adjudication
of the dispute  with  regard  to  the  order  of  dismissal  passed  by  the
respondent. Keeping in mind the date of acquittal of the appellant  and  the
date on  which  he  approached  the  conciliation  officer  by  raising  the
dispute, since the respondent had not adhered to its  assurance,  the  State
Government had rightly referred the dispute for its adjudication.  Therefore
it cannot be said that there was a delay on the part  of  the  appellant  in
raising the dispute and getting it referred  to  the  Labour  Court  by  the
State Government.

17. Further, the Labour Court on an erroneous assumption of law  framed  the
additional issue regarding the limitation in raising  the  dispute  and  its
reference by the State Government to the  Labour  Court.  Thus,  the  Labour
Court has ignored the legal principles laid down by this Court in the  cases
referred to supra. The  award  passed  by  the  Labour  Court  was  accepted
erroneously by both the learned single Judge and the Division Bench  of  the
High Court by dismissing the  Civil  Writ  Petition  &  the  Letters  Patent
Appeal without examining the case in  its  proper  perspective,  keeping  in
view the power of the  State  Government  under  Section  10(1)(c)  and  the
object and intendment of the Act. Not adjudicating the  existing  industrial
dispute on merits between the parties referred to it may lead to  disruption
of industrial peace and harmony, which is the foremost important  aspect  in
Industrial Jurisprudence as the same would affect  the  public  interest  at
large.

18. The Labour Court has failed to  exercise  its  statutory  power  coupled
with duty by not going into the merits of  the  case  and  adjudicating  the
points of dispute referred to it while answering the additional issue No.  2
framed by it regarding limitation. Therefore, it is a fit  case  for  us  to
exercise the jurisdiction of this Court for the reason of  non  adjudication
of dispute on merits between the parties with regard to  the  justifiability
of the order of dismissal passed by respondent.

19. In the instant case, as could be seen from the order  No.5278/ECC  dated
21.10.1994, the charge sheet bearing No. 8648/ECC dated 08.09.1994 was  sent
to the village residence of the appellant through special messenger  of  the
respondent. However, the charge sheet was  not  served  upon  the  appellant
according to the said order; for the reason that the appellant  was  neither
found in his village residence nor  did  anyone  know  of  his  whereabouts.
Therefore,  the  appellant  was  informed  through  the  newspaper   ‘Dainik
Tribune’ dated 04.10.1994 that he should join his  duties  and  deposit  the
amount regarding tickets within 15 days of publication  of  the  notice  and
submit his reply. Despite the same, the appellant neither joined his  duties
nor filed his  reply.  Since  the  appellant  was  being  unresponsive,  the
respondent was of the view that it is in public interest  to  not  keep  the
appellant in its service.  Therefore, an order under  Article  311(2)(b)  of
the Constitution was passed,  giving  effect  to  order  of  termination  of
services of the appellant and disentitling  him  of  any  benefits  for  the
period of absence.

20. From the reason mentioned in the termination order,  it  is  clear  that
the appellant continuously remained absent from his  duties  for  more  than
five months. Despite the publication of the notice,  the  appellant  neither
joined his duty nor did he  submit  his  reply.  Therefore,  the  respondent
straight away passed an order of termination without conducting  an  enquiry
as required in law against the appellant to prove the alleged misconduct  of
unauthorised absence by placing  reliance  upon  Article  311(2)(b)  of  the
Constitution of India.

21. In view of the undisputed facts narrated as above, it is clear  that  no
enquiry was conducted by the appellant against  the  workman  to  prove  the
alleged misconduct of unauthorised absence from his duties. The  reason  for
dispensing with the enquiry is not  at  all  forthcoming  in  the  order  of
termination which refers to the  aforesaid  constitutional  provision.  With
regard to conduct and discipline of its employees the  respondent  is  bound
to follow the Industrial Employment Standing Orders Act,  1946.  The  Labour
Court has failed to take into account these important legal aspects  of  the
case and has erroneously rejected the reference by answering the  additional
issue no.2 on the question of limitation which  is  totally  irrelevant  and
not adjudicating the points of dispute on merits has rendered its award  bad
in law. This amounts to failure to  exercise  its  statutory  power  coupled
with duty.

22. We  are  of  the  considered  view  that  the  disciplinary  proceedings
initiated by the respondent under Rule  7  of  the  Haryana  Civil  Services
(Punishment and Appeal) Rules, 1987 are not only  untenable in law but  also
contrary to the legal principles laid down by  this  Court.   The  appellant
being a workman as defined under Section 2(s) of the Act is an  employee  of
the respondent therefore he will be governed by the  Model  Standing  Orders
framed under the Industrial Employment (Standing Orders) Act, 1946.

23. Thus, the fact  remains  that  the  disciplinary  proceedings  were  not
initiated under  the  provisions  of  the  Industrial  Employment  (Standing
Orders) Act, 1946. The respondent, both before  the  Labour  Court  and  the
High Court, has erroneously placed reliance  on  the  order  of  termination
passed against the workman without  producing  any  evidence  on  record  to
justify the alleged misconduct of unauthorised  absence  of  the  appellant.
Therefore, the points of dispute referred to the Labour  Court  should  have
been answered affirmatively by it and  an  award  granting  the  reliefs  as
prayed by the appellant should have been passed. This aspect of  the  matter
is not examined by the High Court either in the  Writ  Petition  or  in  the
Letters Patent Appeal. Therefore, the impugned judgment  and  order  of  the
High Court and award of the Labour Court are bad in law  and  liable  to  be
set aside.

24. Both the Labour Court and the High Court  have  failed  to  examine  the
findings recorded in the order of termination which was  the  subject-matter
of reference made by the  state  government  for  adjudication.  The  Labour
Court and the High Court have failed to  examine  another  important  aspect
that there is neither any tenable  explanation  nor  any  material  evidence
produced by the respondent before the courts below to justify  its  adoption
of the Haryana Civil Services (Punishment and Appeal) Rules  for  initiating
the disciplinary proceedings against the appellant-workman. In  the  absence
of plea and material documents produced by the respondent,  the  proceedings
initiated and passing of the  order  of  termination  is  bad  in  law.  The
appellant is a workman in terms of  Section  2(s)  of  the  Act,  therefore,
Model Standing Orders framed under the provisions of  Industrial  Employment
(Standing Orders) Act of 1946 and the  principles  of  natural  justice  are
required to be  followed  by  the  respondent  for  initiating  disciplinary
proceedings and taking disciplinary action against the  workman.  Since  the
respondents have not followed the  procedure  laid  down  therein  from  the
beginning till the  passing  of  the  order  of  termination,  the  same  is
vitiated in law and hence, liable to be set aside.

25. We are of the view that the Labour Court and the High Court  have  erred
in not deciding the industrial dispute between the parties on the  basis  of
admitted facts, firstly, the enquiry not being  conducted  for  the  alleged
misconduct of unauthorised absence by  the  appellant  from  02.04.1993  and
secondly, the enquiry being dispensed with by invoking Article 311(b)(2)  of
the Constitution of India without  any  valid  reason.  Moreover,  an  order
stating the impossibility of conducting the enquiry and dispensing with  the
same was not issued to the appellant. The reasoning assigned  in  the  order
of termination is bad in law. Therefore, the impugned  judgment,  order  and
award of the High Court and the Labour Court are required to  be  set  aside
as the same are contrary  to  the  provisions  of  the  Act,  principles  of
natural justice and the law laid down by  this  Court  in  catena  of  cases
referred to supra.

26. In addition to the above findings and  reasons,  the  case  of  Calcutta
Dock Labour Board and Ors. v. Jaffar Imam and Ors[6].  is  aptly  applicable
to the fact situation of the case  on  hand.  In  the  aforesaid  case,  the
respondents had been detained under  the  Preventive  Detention  Act,  1950.
Thereafter, they were terminated by the appellants  without  being  given  a
reasonable  opportunity  to  show  cause  as  to  why  they   shouldn’t   be
terminated. It was held by this Court as follows:-

“13.Even in regard to its employees who may have  been  detained  under  the
Act, if after their  release  the  appellant  wanted  to  take  disciplinary
action against them on the ground that they were guilty  of  misconduct,  it
was absolutely essential that  the  appellant  should  have  held  a  proper
enquiry. At this enquiry, reasonable opportunity should have been  given  to
the respondents to show  cause  and  before  reaching  its  conclusion,  the
appellant was bound to lead evidence against the respondents,  give  them  a
reasonable chance to test the said evidence,  allow  them  liberty  to  lead
evidence in defence, and then come  to  a  decision  of  its  own.  Such  an
enquiry is  prescribed  by  the  requirements  of  natural  justice  and  an
obligation to hold such an enquiry is  also  imposed  on  the  appellant  by
clause 36(3) of the Scheme of 1951 and cl. 45(6) of the Scheme of  1956.  It
appears that in the present enquiry, the respondents were not  given  notice
of any specific allegations made against them, and the record clearly  shows
that no evidence was led in the enquiry at all. It  is  only  the  detention
orders that were apparently produced and  it  is  on  the  detention  orders
alone that the whole proceedings rest and the impugned orders  are  founded.
That being so, we feel no hesitation in holding that  the  Court  of  Appeal
was perfectly right in setting aside the respective  orders  passed  by  the
two leaned single Judges  when  they  dismissed  the  three  writ  petitions
filed, by the respondents.





14.……The circumstance that the  respondents  happened  to  be  detained  can
afford no justification  for  not  complying  with  the  relevant  statutory
provision and not following the principles of natural justice.  Any  attempt
to short-circuit the procedure based on considerations  of  natural  justice
must, we think, be discouraged if the rule of law has  to  prevail,  and  in
dealing with the question of  the  liberty  and  livelihood  of  a  citizen,
considerations of expediency which are not permitted  by  law  can  have  no
relevance whatever…”


              (Emphasis laid by the Court)



27. In the present case, before passing the order of dismissal for  the  act
of alleged misconduct by the workman-appellant, the respondent  should  have
issued a show cause notice to the appellant, calling upon him to show  cause
as to why the order of dismissal should  not  be  passed  against  him.  The
appellant  being  an  employee  of  the  respondent  was  dismissed  without
conducting an enquiry against him  and  not  ensuring  compliance  with  the
principles of natural justice.  The  second  show  cause  notice  giving  an
opportunity to show cause to the  proposed  punishment  before  passing  the
order of termination was also not given  to  the  appellant-workman  by  the
respondent which is mandatory in law as per the decisions of this  Court  in
the case of Union of India and others v.  Mohd. Ramzan Khan[7] and  Managing
Director, ECIL, Hyderabad, v. Karunakar[8].



28. With respect to the case on hand,  the  appellant  was  on  unauthorised
absence only  due  to  the  fact  that  he  had  genuine  constraints  which
prevented him from joining back his duties. The unauthorised absence of  the
appellant which lead to his termination was due to the fact that the he  was
falsely implicated in the  criminal  case  filed  at  the  instance  of  the
respondent and that he must have had reasonable apprehension of  arrest  and
was later in judicial custody. It is to be  noted  that  out  of  the  total
period  of  the  alleged  unauthorised  absence,  the  appellant  was  under
judicial custody for two months due to the criminal case filed  against  him
at the instance of the respondent.

29. Further, assuming  for  the  sake  of  argument  that  the  unauthorised
absence of the appellant is a fact, the employer is empowered  to  grant  of
leave without wages or extraordinary leave.  This aspect  of  the  case  has
not been taken into consideration by the employer at  the  time  of  passing
the order  of  termination.  Therefore,  having  regard  to  the  period  of
unauthorised absence and facts and circumstances of the  case,  we  deem  it
proper to treat the unauthorised absence period as leave without  wages.  In
our view, the termination order is vitiated since it is disproportionate  to
the gravity of  misconduct  alleged  against  him.  The  employment  of  the
appellant-workman with the respondent is the source of  income  for  himself
and his family members’ livelihood, thereby  their  liberty  and  livelihood
guaranteed under Article 21 of the Constitution of India is  denied  as  per
the view of this Court in its Constitution Bench decision in Olga  Tellis  &
Ors. v. Bombay Municipal Corporation and Ors.[9]  wherein  it  was  held  as
under:-
“32.....The sweep of the right to life conferred by Article 21 is  wide  and
far reaching. It does not mean merely that life cannot  be  extinguished  or
taken away as, for example, by the imposition and  execution  of  the  death
sentence, except according to procedure established by law. That is but  one
aspect of the right to life. An equally important facet  of  that  right  is
the right to livelihood because, no person can live  without  the  means  of
living, that is, the means of livelihood. If the right to livelihood is  not
treated as a part of the constitutional right to life, the  easiest  way  of
depriving a person his right to life would be to deprive him  of  his  means
of livelihood to the point of abrogation. Such deprivation  would  not  only
denude the life of its effective content and  meaningfulness  but  it  would
make life impossible to live. And yet, such deprivation would  not  have  to
be In accordance with the procedure established by  law,  if  the  right  to
livelihood is not regarded as a part of  the  right  to  life.  That,  which
alone makes it possible to live, leave aside what makes life liveable,  must
be deemed to be an integral component  of  the  right  to  life.  Deprive  a
person of his right to livelihood and you shall have  deprived  him  of  his
life.....”


30. The appellant workman is a conductor in  the  respondent-statutory  body
which is an undertaking under the State Government of Haryana thus it  is  a
potential employment. Therefore, his services could not have been  dispensed
with  by  passing  an  order  of  termination  on  the  alleged  ground   of
unauthorised absence  without  considering  the  leave  at  his  credit  and
further examining whether he is entitled for either leave without  wages  or
extraordinary leave. Therefore, the order of termination passed  is  against
the fundamental rights guaranteed to the workman under Articles 14,  16,  19
and 21 of the  Constitution  of  India  and  against  the  statutory  rights
conferred upon him under the Act as well as against the  law  laid  down  by
this Court in the cases referred to supra.  This  important  aspect  of  the
case has not been considered by the courts below.  Therefore,  the  impugned
award of the Labour Court and the judgment & order of  the  High  Court  are
liable to be set aside.

31. The rejection of the reference by the  Labour  Court  by  answering  the
additional issue no. 2 regarding the delay latches  and  limitation  without
adjudicating the points of dispute referred to it on the merits  amounts  to
failure to exercise its statutory  power  under  Section  11A  of  the  Act.
Therefore, we have to interfere with the impugned award of the Labour  Court
and  the judgment & order of the High Court as it has erroneously  confirmed
the award of the Labour Court without examining the relevant  provisions  of
the Act and decisions of this Court referred to supra on the relevant  issue
regarding the limitation.


32. Further,  in  the  case  of  The  Managing  Director,  U.P.  Warehousing
Corporation and Ors., v. Vijay Narayan Vajpayee[10],   in  which  the  ratio
decidendi has got relevance to the fact situation of the case on  hand  this
Court held as under :-


“21.The question whether breach of  statutory  regulations  or  failures  to
observe the principles of natural justice by a  statutory  Corporation  will
entitle  an  employee  of  such  Corporation  to  claim  a  declaration   of
continuance in service and the question whether the employee is entitled  to
the protection of Arts. 14 and 16 against the  Corporation  were  considered
at  great  length  in  Sukhdev  Singh  &  Ors.  v.  Bhagatram  Sardar  Singh
Raghuvanshi & Anr.(1) The question  as  to  who  may  be  considered  to  be
agencies or instrumentalities of the Government was also  considered,  again
at some length, by this Court in Ramana Dayaram Shetty v. The  International
Airport Authority of India & Ors.(2)


22. I find it very hard indeed to discover any  distinction,  on  principle,
between a person directly under the  employment  of  the  Government  and  a
person  under  the  employment  of  an  agency  or  instrumentality  of  the
Government or a Corporation, set up under  a  statute  or  incorporated  but
wholly owned by  the  Government.....  There  is  no  good  reason  why,  if
Government is bound to observe the equality clauses of the  constitution  in
the matter of employment  and  in  its  dealings  with  the  employees,  the
Corporations set up or owned by the Government should not be  equally  bound
and why, instead, such Corporations could become citadels of  patronage  and
arbitrary action. In a country like ours which teems with population,  where
the State, its agencies, its instrumentalities and its Corporations are  the
biggest employers and  where  millions  seek  employment  and  security,  to
confirm the applicability of the equality clauses of  the  constitution,  in
relation to matters of employment, strictly to direct employment  under  the
Government is perhaps to mock at  the  Constitution  and  the  people.  Some
element of public employment is all that is necessary to take  the  employee
beyond the reach of the rule which denies him access to a Court  so  enforce
a contract of employment and denies him the protection of Arts.  14  and  16
of the Constitution. After all employment in the public sector has grown  to
vast dimensions and employees  in  the  public  sector  often  discharge  as
onerous duties as civil servants and participate in activities vital to  our
country's economy. In growing realization of the  importance  of  employment
in the public sector, Parliament and the Legislatures  of  the  States  have
declared persons in the service of local authorities,  Government  companies
and statutory corporations as public  servants  and,  extended  to  them  by
express enactment the protection usually extended  to  civil  servants  from
suits and prosecution. It is, therefore, but  right  that  the  independence
and integrity of those employed in the public sector should  be  secured  as
much as the independence and integrity of civil servants.”


                                               (Emphasis given by the Court)
The above cardinal legal principles laid down by this Court with  all  fours
are applicable to the case on hand for the reasons that the respondent is  a
statutory body which is under the control of the  State  Government  and  it
falls within the definition of Article 12 of the Constitution of  India  and
therefore Part III of the Constitution is applicable to its employees.

33. Once the reference is made by the State Government in  exercise  of  its
statutory power to  the  Labour  Court  for  adjudication  of  the  existing
industrial dispute on the points of dispute, it is the  mandatory  statutory
duty of the Labour Court under Section 11A of  the  Act  to  adjudicate  the
dispute on merits on the basis of evidence produced on record.  Section  11A
was inserted to the Act by the Parliament by the Amendment Act  45  of  1971
(w.e.f. 15.12.1972) with the avowed object to examine the  important  aspect
of proportionality of punishment imposed upon a  workman  if,  the  acts  of
misconduct  alleged  against  workman   are   proved.   The   “Doctrine   of
Proportionality”  has  been  elaborately  discussed   by   this   Court   by
interpreting the above provision in the case of Workmen of Messrs  Firestone
Tyre & Rubber Company of India v. Management & Ors.[11] as under:-


“33. The question is whether section 11A has made any changes in  the  legal
position mentioned above and  if  so,  to  what  extent?  The  Statement  of
objects and reasons  cannot  be  taken  into  account  for  the  purpose  of
interpreting the plain words of the section. But it gives an  indication  as
to what the Legislature wanted  to  achieve.  At  the  time  of  introducing
section 11A in the Act, the legislature must have been aware of the  several
principles laid down in the various decisions  of  this  Court  referred  to
above. The object is stated to be that the, Tribunal should  have  power  in
cases, where necessary, to set aside the order  of  discharge  or  dismissal
and direct reinstatement or award any lesser punishment.  The  Statement  of
objects and reasons has specifically  referred  to  the  limitation  on  the
powers of an Industrial Tribunal, as laid, down  by  this  Court  in  Indian
Iron & Steel Co. Ltd. V. Their Workmen (AIR 1958 SC130 at P.138).


34. This will be a convenient stage to  consider  the  contents  of  section
11A. To invoke section 11A, it is necessary that an  industrial  dispute  of
the type mentioned therein  should  have  been  referred  to  an  Industrial
Tribunal for adjudication. In the course of such adjudication, the  Tribunal
has to be satisfied that the,  order  of  discharge  or  dismissal  was  not
justified. If it comes to such a conclusion, the Tribunal has to  set  aside
the order and direct reinstatement of  the  workman  on  such  terms  as  it
thinks fit. The Tribunal has also power to give  any  other  relief  to  the
work-man including the imposing of a lesser punishment having due regard  to
the circumstances. The proviso casts a duty on the Tribunal to rely only  on
the materials on record and prohibits it from taking any fresh evidence.”


Thus, we believe that the Labour Court and the High  Court  have  failed  in
not adjudicating the dispute on merits and also  in  not  discharging  their
statutory duty in exercise of their power vested under Section  11A  of  the
Act and therefore, the impugned judgment, order and award  are  contrary  to
the provisions of the Act and law laid down  by  this  Court  in  the  above
case.

34. Further, the object of insertion of Section 11A of the Act is  traceable
to the International Labour Organisation resolution as it is stated  in  the
case of Workmen of Messrs Firestone Tyre & Rubber case (supra) that:-
“3.The International Labour Organisation, in its  recommendation  (No.  119)
concerning termination of employment  at  the  initiative  of  the  employer
adopted in June 1963,  has  recommended  that  a  worker  aggrieved  by  the
termination of his employment should be  entitled,  to  appeal  against  the
termination among others, to a neutral body such as an arbitrator, a  court,
an arbitration committee or  a  similar  body  and  that  the  neutral  body
concerned  should  be  empowered  to  examine  the  reasons  given  in   the
termination of employment and the other circumstances relating to the  case,
and to render a decision  on  the  justification  of  the  termination.  The
International Labour Organisation has further recommended that  the  neutral
body should be empowered (if it finds that  the  termination  of  employment
was unjustified) to order that the worker concerned, unless reinstated  with
unpaid wages, should be paid adequate compensation or  afforded  some  other
relief.

In  accordance  with  these  recommendations,  it  is  considered  that  the
Tribunal's power in an adjudication  proceeding  relating  to  discharge  or
dismissal of a workman should not be limited and that  the  Tribunal  should
have the power in cases wherever  necessary,  to  set  aside  the  order  of
discharge or dismissal and direct  reinstatement  of  the  workman  on  such
terms and conditions, if any, as it thinks fit or give such other relief  to
the workmen including  the  award  of  any  lesser  punishment  in  lieu  of
discharge or dismissal as the circumstances of the  case  may  require.  For
this purpose,  a  new  section  11A  is  proposed  to  be  inserted  in  the
Industrial Disputes Act, 1947....”


Therefore, we are of the firm view that the Labour Court and the High  Court
have failed to adjudicate the dispute referred to it  on  the  merits.  This
has lead to gross miscarriage of justice and therefore, we have to  exercise
our jurisdiction  under  Article  136  of  the  Constitution  of  India  and
interfere with the impugned judgment, order and award of the High Court  and
the Labour Court to do justice to the  workman  who  has  been  relentlessly
litigating for his legitimate rights.

35. Having regard to the facts and circumstances of this  case,  we  are  of
the view that it is important to  discuss  the  Rule  of  the  ‘Doctrine  of
Proportionality’ in ensuring preservation of the rights of the workman.  The
principle of ‘Doctrine of Proportionality’  is  a  well  recognised  one  to
ensure that the action of the employer against  employees/workmen  does  not
impinge their fundamental and statutory rights.  The  above  said  important
doctrine has to be followed by the employer/employers at the time of  taking
disciplinary  action  against  their  employees/workmen   to   satisfy   the
principles   of   natural   justice   and   safeguard    the    rights    of
employees/workmen.

36. The above said “Doctrine of Proportionality” should be  applied  to  the
fact situation as we are of the firm view that  the  order  of  termination,
even if we accept the same is  justified,  it  is  disproportionate  to  the
gravity of misconduct. In this regard, it would be  appropriate  for  us  to
refer to certain paragraphs from the decision of this Court in the  case  of
Om Kumar and Ors. v. Union of India[12],  wherein it was held as under:-

“66.  It  is  clear  from  the  above  discussion  that   in   India   where
administrative   action   is   challenged    under    Article 14 as    being
discriminatory,  equals  are  treated  unequally  or  unequals  are  treated
equally, the question is for the Constitutional Courts as primary  reviewing
Courts to consider correctness of the level of  discrimination  applied  and
whether it is excessive and whether  it  has  a  nexus  with  the  objective
intended to be achieved by the administrator. Hence  the  Court  deals  with
the merits of the balancing action of the administrator and is, in  essence,
applying 'proportionality' and is a primary reviewing authority.





67. But where, an administrative action is challenged as  'arbitrary'  under
Article 14 on the basis  of  Royappa  (as  in  cases  where  punishments  in
disciplinary cases  are  challenged),  the  question  will  be  whether  the
administrative order is 'rational' or 'reasonable' and the test then is  the
Wednesbury test. The Courts would then be confined only to a secondary  role
and will only have to see whether the administrator has  done  well  in  his
primary role, whether  he  has  acted  illegally  or  has  omitted  relevant
factors  from  consideration  or   has   taken   irrelevant   factors   into
consideration or whether his view is one which no  reasonable  person  could
have taken. If his action does not satisfy these rules, it is to be  treated
as arbitrary. [In G.B. Mahajan vs.  Jalgaon Municipal Council]  AIR 1991  SC
1153  )].  Venkatachaliah,  J.  (as  he   then   was)   pointed   out   that
'reasonableness' of the administrator under  Article 14 in  the  context  of
administrative law has to be judged  from  the  stand  point  of  Wednesbury
rules. In Tata's Cellular vs.  Union  of  India AIR  1996  SC  11  ,  Indian
Express Newspapers vs. Union  of  India          (:  [1986]159ITR856(SC)  ),
Supreme Court Employees' Welfare Association vs. Union  of  India  and  Anr.
(1989)II LLJ 506 SC ) and UP. Financial Corporation v. GEM CAP (India)  Pvt.
Ltd. ( [1993]2 SCR 149 ), while Judging whether  the  administrative  action
is 'arbitrary' under Article 14(i.e. otherwise then  being  discriminatory),
this Court has confined itself to a Wednesbury review always.





68. Thus, when administrative action is  attacked  as  discriminatory  under
Article 14, the principle of primary review is for the  Courts  by  applying
proportionality. However,  where  administrative  action  is  questioned  as
'arbitrary' under Article 14, the principle of  secondary  review  based  on
Wednesbury principles applies.”


37. Additionally, the proportionality and  punishment  in  service  law  has
been discussed by this Court in the Om Kumar case (supra) as follows:-

“69. The principles explained in the last preceding paragraph in respect  of
Article 14 are now to be applied here where the question of  'arbitrariness'
of the order of punishment is questioned under Article 14.


70. In this context, we shall only refer to these cases.  In  Ranjit  Thakur
vs. Union of India (1988CriLJ158), this Court referred to  'proportionality'
in the quantum of punishment but the Court observed that the punishment  was
'shockingly' disproportionate to the misconduct proved. In  B.C.  Chaturvedi
v. Union of India: (1996)ILLJ1231SC), this Court stated that the Court  will
not interfere unless  the  punishment  awards  was  one  which  shocked  the
conscience of the Court. Even then, the court would remit  the  matter  back
to the authority and would not normally substitute one  punishment  for  the
other. However, in rare situations, the Court  could  award  an  alternative
penalty. It was also so stated in Ganayutham.”




38. With respect to the proportionality of the punishment of  ‘censure’,  it
was further observed by this Court in the Om Kumar case (supra) that:-

“75. After giving our anxious consideration to  the  above  submissions  and
the facts and the legal principles above referred to, we have  finally  come
to the conclusion that it will be difficult for us to  say  that  among  the
permission minor punishments, the choice of the punishment of 'censure'  was
violative of  the  Wednesbury  rules.  No  relevant  fact  was  omitted  nor
irrelevant fact was taken into account. There is no  illegality.  Nor  could
we say that  it  was  shockingly  disproportionate.  The  administrator  had
considered the report of Justice Chinnappa Reddy Commission, the finding  of
the Inquiry Officer, the opinion of the UPSC which was given twice  and  the
views of the Committee of Secretaries. Some were  against  the  officer  and
some were in  his  favour.  The  administrator  fell  that  there  were  two
mitigating factors (i) the complicated stage at which the officer  was  sent
to DDA and (ii) the absence of malafides. In the final analysis, we are  not
inclined to refer the  matter  to  the  Vigilance  Commissioner  for  upward
revision of punishment.”



39. Now, it is necessary for this Court to examine  another  aspect  of  the
case on hand, whether the appellant  is  entitled  for  reinstatement,  back
wages and the other consequential benefits. In the  case  of  Deepali  Gundu
Surwase  V. Kranti Junior Adhyapak  Mahavidyalaya  (D.  Ed)  and  Ors.[13] ,
this Court opined as under:-


“22. The very idea of restoring an employee to the position  which  he  held
before dismissal or removal or  termination  of  service  implies  that  the
employee will be put in the same position in which he would  have  been  but
for the illegal action taken by the  employer.  The  injury  suffered  by  a
person, who is dismissed or removed or is otherwise terminated from  service
cannot easily be measured in terms of money. With the passing  of  an  order
which has the effect of severing the  employer  employee  relationship,  the
latter's source of income gets dried up. Not only  the  concerned  employee,
but his entire family suffers grave adversities. They are  deprived  of  the
source of sustenance. The children are deprived of nutritious food  and  all
opportunities of education and advancement in life.  At  times,  the  family
has  to  borrow  from  the  relatives  and  other  acquaintance   to   avoid
starvation. These sufferings continue till the competent adjudicatory  forum
decides  on  the  legality  of  the  action  taken  by  the  employer.   The
reinstatement of such an employee, which is preceded by  a  finding  of  the
competent judicial/quasi judicial body or Court that  the  action  taken  by
the  employer  is ultra  vires the  relevant  statutory  provisions  or  the
principles of natural justice, entitles the  employee  to  claim  full  back
wages. If the employer wants to deny back wages to the employee  or  contest
his entitlement to get consequential benefits, then it  is  for  him/her  to
specifically  plead  and  prove  that  during  the  intervening  period  the
employee was gainfully employed and was getting the same emoluments.  Denial
of back wages to an employee, who has suffered due to an illegal act of  the
employer would amount to indirectly punishing  the  concerned  employee  and
rewarding the employer by relieving him of the obligation to pay back  wages
including the emoluments.





23. A somewhat similar issue was  considered  by  a  three  Judge  Bench  in
Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt.  Ltd.
(supra)......The relief of reinstatement with continuity of service  can  be
granted where termination of service is found to be invalid. It  would  mean
that the employer has taken away illegally the right to work of the  workman
contrary to the relevant law or in breach  of  contract  and  simultaneously
deprived the workman of his earnings. If thus the employer is  found  to  be
in the wrong as a result of which the workman is directed to be  reinstated,
the employer could not shirk his responsibility of paying  the  wages  which
the workman has been deprived of by the illegal or  invalid  action  of  the
employer.  Speaking  realistically,  where   termination   of   service   is
questioned as invalid or illegal and the  workman  has  to  go  through  the
gamut  of  litigation,  his  capacity  to  sustain  himself  throughout  the
protracted litigation is itself such an  awesome  factor  that  he  may  not
survive to see the day when relief is granted. More so in our  system  where
the  law's  proverbial  delay  has  become  stupefying.  If  after  such   a
protracted time and energy consuming  litigation  during  which  period  the
workman just sustains himself, ultimately he is to be told  that  though  he
will be reinstated, he will be denied the back wages which would be  due  to
him, the workman would be subjected to a sort of penalty  for  no  fault  of
his and it is wholly undeserved.  Ordinarily,  therefore,  a  workman  whose
service has been illegally terminated would be entitled to full  back  wages
except  to  the  extent  he  was  gainfully  employed  during  the  enforced
idleness. That is the normal rule. Any other view would be a premium on  the
unwarranted litigative activity of the employer. If the employer  terminates
the service illegally and the termination is motivated as in this case  viz.
to resist the workmen's demand for revision of wages,  the  termination  may
well amount to unfair labour practice. In such  circumstances  reinstatement
being the normal rule, it should be followed with full back wages.....


In the very nature of things there cannot be  a  strait-jacket  formula  for
awarding relief of back wages. All relevant considerations  will  enter  the
verdict. More or less, it would be a motion addressed to the  discretion  of
the Tribunal. Full back wages  would  be  the  normal  rule  and  the  party
objecting to it must establish the  circumstances  necessitating  departure.
At that stage the Tribunal will exercise its discretion keeping in view  all
the relevant circumstances. But  the  discretion  must  be  exercised  in  a
judicial and judicious manner. The reason for exercising discretion must  be
cogent and convincing and must appear on the face of the record. When it  is
said that something is to be done within the discretion  of  the  authority,
that something is to be done according to the Rules of reason  and  justice,
according to law and not humour. It  is  not  to  be  arbitrary,  vague  and
fanciful but legal and regular.....





24. Another three Judge Bench considered the same issue  in  Surendra  Kumar
Verma v. Central Government Industrial Tribunal-cum-Labour Court, New  Delhi
(supra) and observed: Plain common sense dictates that  the  removal  of  an
order terminating the services  of  workmen  must  ordinarily  lead  to  the
reinstatement of the services of the workmen. It is  as  if  the  order  has
never been, and so it must ordinarily lead to back  wages  too......In  such
and other exceptional cases the court may mould the relief, but,  ordinarily
the relief to be awarded must be reinstatement with full  back  wages.  That
relief must be awarded where no special impediment in the  way  of  awarding
the relief is clearly shown. True, occasional hardship may be caused  to  an
employer but we must remember that, more often than not,  comparatively  far
greater hardship is certain to be caused to the workmen  if  the  relief  is
denied than to the employer if the relief is granted.”


         (Emphasis supplied by this Court)





40. The above critical analysis of law laid down by this Court in  the  case
referred to supra, is very much relevant to  the  case  on  hand,  which  is
neither discussed nor considered and examined  by  the  courts  below  while
answering the reference made by the State Government and passing the  award,
judgments & orders in a cavalier manner. Thus, the lives  of  the  appellant
and his family members have been hampered. Further, on  facts,  we  have  to
hold that the order of termination passed is highly disproportionate to  the
gravity of misconduct and therefore shocks the  conscience  of  this  Court.
Hence, we hold that the appellant is entitled for the reliefs as  prayed  by
him in this appeal.

41. In view of the foregoing reasons, the award of the Labour Court and  the
judgment & order of the High Court are highly erroneous in  law.  Therefore,
the same are required to be interfered with by this  Court  in  exercise  of
the appellate jurisdiction as  there  is  miscarriage  of  justice  for  the
workman in this case.

42. It is an undisputed fact that the dispute  was  raised  by  the  workman
after he was acquitted in the criminal  case  which  was  initiated  at  the
instance of the respondent. Raising the  industrial  dispute  belatedly  and
getting the same referred from the State Government to the Labour  Court  is
for justifiable reason and the same is supported by law laid  down  by  this
Court in Calcutta Dock Labour Board (supra). Even assuming for the  sake  of
the argument that there was a certain delay and latches on the part  of  the
workman in raising the industrial dispute and getting  the  same  referenced
for adjudication, the Labour Court is statutorily duty bound to  answer  the
points of dispute referred to it by adjudicating the same on merits  of  the
case and it ought to have moulded the relief appropriately in favour of  the
workman. That has not been done  at  all  by  the  Labour  Court.  Both  the
learned single Judge as well as the Division Bench of the High Court in  its
Civil Writ Petition and the Letters Patent Appeal have  failed  to  consider
this important aspect of the matter. Therefore, we are of the view that  the
order of termination passed by the  respondent,  the  award  passed  by  the
Labour Court and the judgment & order of the High Court  are  liable  to  be
set aside. When we arrive at the aforesaid conclusion, the  next  aspect  is
whether  the  workman  is  entitled  for  reinstatement,  back   wages   and
consequential benefits. We  are  of  the  view  that  the  workman  must  be
reinstated. However, due to delay in raising  the  industrial  dispute,  and
getting it referred to the Labour  Court  from  the  State  Government,  the
workman will be entitled in law  for  back  wages  and  other  consequential
benefits  from  the  date  of  raising  the  industrial  dispute  i.e.  from
02.03.2005 till reinstatement with all consequential benefits.

43. For the foregoing  reasons,  we  grant  the  following  reliefs  to  the
workman by allowing this appeal:
The award of the Labour Court, judgment and orders passed by the High  Court
are set aside;
The respondent is directed to  reinstate  the  appellant-workman  with  back
wages from the date of raising the industrial dispute i.e.  02.03.2005  till
the date of his  reinstatement  with  all  consequential  benefits  such  as
continuity of service, wage revisions and other statutory monetary  benefits
as the respondent has  been  litigating  the  dispute  without  tenable  and
acceptable reason; and
Since the appellant-workman was compelled to take on  this  long  battle  of
litigation to get his rights enforced from the Court of law, the  respondent
is directed to implement this order  within  six  weeks  from  the  date  of
receipt of the copy of this Judgment.

The appeal is allowed. No costs.
                                               ………………………………………………………………………J.
                        [SUDHANSU JYOTI MUKHOPADHAYA]



                                               ………………………………………………………………………J.
                        [V. GOPALA GOWDA]

New Delhi,
September 3, 2014


-----------------------
[1]
      [2]         (2013) 14 SCC 543
[3]
      [4]          (1979) 1 SCC 1
[5]
      [6]          (2001)6 SCC 222
[7]
      [8]         (2003)4 SCC 27
[9]
      [10]         (1999)6 SCC  82
[11]
      [12]        AIR 1966 SC 282
[13]
      [14]        (1991)1 SCC 588
[15]
      [16]       (1993)4 SCC 727
[17]
      [18]        (1985)3 SCC  545
[19]
      [20]        (1980)3 SCC 459
[21]
      [22]        1973(1) SCC 813
[23]
      [24]        (2001)2 SCC 386
[25]
      [26]        (2013) 10 SCC 324

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