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
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
