Himachal Road Transport Corporation vs Presiding Officer, Labour Court and Another

V.P. Gupta, J.—This writ petition has been filed by the Himachal Road Transport Corporation challenging the award (copy of which is Annexure P.A.) given by Shri H. D. Kainthla, Presiding Officer, Labour Court, in a reference No. 6/73, under the Industrial Disputes Act, 1947 (hereinafter shortly called the Act). This award has been published in the Himachal Pradesh Rajpatra, dated 12th April, 1980.

The brief facts of the case are that Prem Singh Respondent No. 2 was serving in the capacity of a conductor with the Petitioner, when his services were terminated by order, dated 3rd August, 1970, issued by the then Mandi-Kulu Road Transport Corporation. Respondent No. 2 had joined the service of the Mandi-Kulu Road Transport Corporation in the year 1960 as a conductor. In October, 1974, this Mandi-Kulu Road Transport Corporation was taken over by the present Petitioner, who became a successor to the erstwhile Mandi-Kulu Road Transport Corporation.

The allegations against Respondent No. 2 were that he was working against the post of an Assistant Cashier on 5th July, 1965, for the first day and on this day he misappropriated a sum of Rs. 401.80, which misappropriation was detected in October, 1966, when audit of the erstwhile Mandi-Kulu Road Transport Corporation was carried out. An enquiry was held against Respondent No. 2. Upon receipt of the enquiry report, Respondent No. 2 was issued a show-cause notice and thereafter his services were terminated on 3rd August, 1970, as stated before.

Respondent No. 2 feeling aggrieved from this order regarding termination of his services agitated the matter and finally a reference was made by the State Government u/s 10 of the Act on 30th September, 1972. The dispute referred for arbitration to the Tribunal, i.e. the Labour Court, was as follows:

"Whether the termination of services of Shri Prem Singh Dogra, Conductor, Mandi-Kulu Road Transport Corporation by the General Manager of the Corporation vide the order dated 3rd August, 1970, is justified and in order? If so, to what relief and exact amount of compensation Shri Prem Singh Dogra is entitled to?

The Presiding Officer of the Labour Court framed the following issues for deciding the dispute between the parties:

Whether the order, dated August 3, 1970, terminting the services of the Petitioner is void and ultra vires and, therefore, should be quashed? O.P.A.

Whether the order of termination referred to above was passed mala fide and therefore is bad in law and should be quashed? O.P.A.

In case Issues Nos. 1 and 2 are found for the applicant whether he is entitled to a sum of Rs. 14,094.35 P. as arrears of his pay and allowances from the date of termination of his services to April 30, 1973, and also whether he is entitled to get the arrears of his pay and allowances to the date of his re-instatement? O.P.A.

Relief.

After holding an enquiry and recording the evidence of the parties the Presiding Officer, Labour Court, decided issues 1 and 2 against Respondent No. 2, and also held that Respondent No. 2 is not entitled to the arrears of pay and allowances, as claimed by him. It was also held that as a matter of right, the Respondent No. 2 cannot claim any re-instatement in view of the findings on issues 1 and 2. The Presiding Officer thereafter considered the quantum of punishment inflicted upon Respondent No. 2 in the light of the different circumstances which had been proved on record before him as well as the surrounding circumstances. Therefore, after considering the various circumstances of the case the Presiding Officer deemed it to be a fit case for invoking the powers u/s 11A of the Act and as a result of the same held that the punishment of dismissal inflicted upon Respondent No. 2 is unjustified and he gave a lesser punishment in the following terms:

(26) Therefore, for all that has been observed above, I hold that the dismissal order of the applicant was unjustified in the circumstances of the case. Any lesser punishment should have served as corrective to the applicant. Now I declare that in place of punishment of dismissal of service of the applicant the denial of back wages from the date of dismissal till the publication of this Award and loss of full wages less allowance during suspension period is more than enough punishment to the applicant. He shall be re-instated to service within one month of the publication of this award by the Respondent-corporation by serving a notice calling upon him to join service within a reasonable time, not later than 30 days of the publication of the Award, or as soon as the applicant reports for duty in the office of the Divisional Manager, H.R.T.C. Mandi, after the expiry of one month''s period of the said publication.

(27) The applicant thus shall be treated regular employee of the Respondent with the seniority position and other service benefits he was availing on the date of his dismissal, with all future benefits of promotion, etc. The period from the date of dismissal on 3-8-1970, to his joining now in 1980, would count for pension, seniority, increments and promotion purposes as a duty period but without financial benefit of the salary amount payable to the applicant.

(28) I answer this industrial dispute reference with the above relief of re-instatement of the applicant without any further compensation, for intervening period from his dismissal till his re-joining

(29) The parties shall bear their respective costs also.

The Petitioner has now challenged this award of the Tribunal, and Shri S.S. Mittal, Advocate, appearing on behalf of the Petitioner contended that the Tribunal after having decided the matters in controversy between the parties in favour of the Petitioner and against Respondent No. 2 could not reduce the punishment and order that the termination of the service of Respondent No. 2, by order, dated 3rd August, 1970, is illegal. It was vehemently contended by him that the award of the Tribunal in altering the punishment is without jurisdiction and is void. It was also contended by him that the provisions of Section 11A of the Act are not attracted at all because the findings on the issues have been given by the Tribunal in favour of the Petitioner.

Shri Bhagat Ram Sharma, Advocate, appearing on behalf of Respondent No. 2 contended that u/s 11A of the Act the Presiding Officer, Labour Court, has got wide discretion and it can reappraise the evidence and also alter the punishment in appropriate cases and make any suitable and just orders which are proper in the facts and circumstances of each case. It was also contended by him that the present dispute was referred to the Labour Court after the insertion of Section 11A, i.e. after 15th December, 1971, and, therefore, the provisions of Section 11A can be applied in the present case.

Both the learned Counsel for the parties relied upon The The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, in support of their respective contentions. The learned Counsel for the Petitioner also placed further reliance upon Rallis India Limited, Madras v. K. Natarajan and another 1977 (1) L.L.J. 33.

I have considered the contentions of the learned Counsel for the parties and have also gone through the writ petition along with the annexures appended to the same.

While exercising powers under Articles 226/227 of the Constitution, this Court is not to sit as a Court of appeal or review. It can only interfere if there is any error as to jurisdiction or there exists any error which is apparent on the face of the record or if the authority concerned has acted arbitrarily or in disregard to the provisions of law or in violation of the principles of natural justice.

To appreciate the contentions of the learned Counsel for the Petitioner it is advisable to refer to the provisions of Section 11A of the Act which reads as follows:

11A. Powers of Labour Courts, Tribunal and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.-

Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunals for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, 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 workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:

Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.

It may be mentioned that this Section 11A of the Act was added in the Act by amendment, dated 15th December, 1971, and this section can be made applicable to all references made after 15th December, 1971, as has been laid down in The Workmen of M/s. Firestone Tyre & Rubber Co. of India P. Ltd. (supra). The present reference was admittedly made to the Labour Court on 30th July, 1972, and as such the provisions of Section 11A of the Act are applicable for the purpose of deciding the reference.

The contention of the learned Counsel for the Petitioner that the provisions of Section 11A could not be attracted because the findings of issues 1 and 2 had been given against Respondent No. 2 by the Labour Court is without any force in view of the observations made in The Workmen of M/s. Firestone Tyre & Rubber Co. of India P. Ltd. (supra). It has clearly been held in para 31 of this authority that the Act is a beneficial piece of legislation enacted in the interest of employees, and that the Act should be construed in a manner which furthers the policy and object of the Act and is more beneficial to the employees. Their Lordships have further held in para 38 that by enacting Section 11A a change has been effected in the Act and power has been conferred on the Tribunal to alter the punishment imposed by an employer. It has clearly stated as follows:

"If the Tribunal comes to the conclusion that the misconduct is established, either by the domestic enquiry accepted by it or by the evidence adduced before it for the first time, the Tribunal originally had no power to interfere with the punishment imposed by the management. Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimisation. u/s 11A, though the Tribunal may hold that the misconduct is proved, nevertheless it may be of the opinion that the order of discharge or dismissal for the said misconduct is not justified. In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by Section 11A.

Thereafter it has been held in para 44 of the same authority that the Tribunal can consider all the materials which are available to him at the time of announcement of the award, i.e. (1) the evidence taken by the management at the enquiry and the proceedings of the enquiry, or (2) the above evidence and in addition, any further evidence led before the Tribunal, or (3) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workmen contra.

In view of the provisions of Section 11A, enumerated above, and the law as interpreted in The Workmen of M/s. Firestone Tyre and Rubber Co. of India P. Ltd. (supra) it cannot be held that the award by the Labour Court is in any way illegal, without jurisdiction or void because under the provisions of Section 11A the Labour Court has authority to alter the punishment and inflict a lesser punishment. The Labour Court in its award has enumerated the various factors which it has taken into consideration for inflicting lesser punishment upon Respondent No. 2 and the award of the Labour Court is a well reasoned award.

The authority, Rallis India Limited, Madras (supra) is not relevant to the facts of the present case and is quite distinguishable. In that case the Labour Court had given contradictory findings because it had held that the order of discharge of the workman by the employer was bona fide and justified and thereafter it had made certain directions in favour of the workman. In the case in hand it has no where been held by the Labour Court that the order of dismissal of Respondent No. 2 is justified, and, on the other hand, it has held that the punishment of dismissal upon Respondent No. 2 is too harsh and not warranted in the circumstances of the case.

No other point was urged before me.

In view of the above discussion, I do not find any merit in this writ petition and dismiss the same. The parties are left to bear their own costs.