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Judgment
A.G. Masih, J.—C.M. No. 2793 of 2009
Additional documents are taken on record.
C. M. stands disposed of.
C.W.P. No. 9431 of 2001
By this order, I propose to decide two writ petitions i.e. C.W.P. Nos. 9431 of 2001 and 9621 of 2001 as common question of law and similar facts are involved therein.
In C.W.P. No. 9431 of 2001, D.K. Goel, workman-respondent No. 2 was appointed on 251-1983 as S2 Grade and was getting Rs. 2000 as his last drawn wages. He was promoted vide letter dated 17.5.1990 in S3 Grade and was the President of Larsen & Toubro Employees'' Association i.e. Trade Union. He was suspended on 15.6.1990 and, thereafter, charge-sheeted on 21.6.1990. An Inquiry Officer was appointed on 22.8.1990 and the enquiry report was finally submitted on 5.7.1993. Thereafter, he was dismissed from service vide order dated 5.1.1994. A demand notice dated 4.3.1994 was submitted by the workman, to which reply was filed by the Management on 19.4.1994 and on failure of the conciliation proceedings, reference of the dispute was made on 22.11.1994. The following issues were framed by the Labour Court:-
Whether termination of the services of Shri D.K. Goel is justified and in order? If not, to what relief he is entitled to?
Whether the enquiry is liable to be quashed as vitiated?
Relief.
Issue No. 2 was taken as a preliminary issue and vide its order dated 13.11.1998, (Annexure P-10), the Labour Court held that the enquiry conducted by the Management was fair and proper and, therefore, the said issue was decided in favour of the Management. Thereafter, the Labour Court vide award dated 3.4.2001 (Annexure P-11) proceeded to decide issue No. 1 wherein it came to the conclusion that the order of dismissal was unjustified and accordingly, the workman was held entitled to reinstatement with 60% back-wages and continuity of service. The said award dated 3.4.2001 (Annexure P-11) is under challenge in the writ petition.
In C.W.P. No. 9621 of 2001, respondent No. 2 workman Tilak Raj Bhardwaj was appointed on 31.5.1984 in S-2 Grade. He was elected as Secretary of the Workers'' Union on 24.7.1990. He was suspended on 25.7.1990 and thereafter charge-sheeted on 30.7.1990. An enquiry was initiated against him and on submission of the enquiry report, the departmental proceedings concluded with an order of dismissal dated 18.6.1993. A demand notice dated 3.8.1993 was served on the Management and the Management submitted its reply on 3.9.1993. On failure of the conciliation proceedings, the matter was referred to the Labour Court on 6.4.1995. On the basis of the pleadings, the following issues were framed by the Labour Court:-
Whether termination of the services of Shri Tilak Raj Bhardwaj is justified and in order? If not, to what relief he is entitled to?
Whether the enquiry is liable to be quashed as vitiated?
Relief.
The Labour Court treated Issue No. 2 as a preliminary issue and vide its order dated 4.11.1999 held that the Inquiry Officer had conducted the enquiry in a very fair and proper manner and his report is based on facts and there are no grounds to hold the enquiry as vitiated. This issue was, therefore, decided in favour of the Management. Thereafter the Labour Court vide award dated 3.4.2001 (Annexure P-11) proceeded to decide the reference by concluding that the dismissal of the workman was injustified and accordingly he was held entitled to reinstatement in service with 50% back-wages and continuity thereof. The said award dated 3.4.2001 (Annexure P-11) is under challenge in this writ petition by the Management.
Now the question which would determine the fate of these writ petitions is whether any proceedings were pending before the Deputy Labour Commissioner when the order of dismissal came to be passed against both the workmen. It is an admitted position between the parties that the permission as required u/s 33 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) of the Authority before which the proceedings are pending, had not been sought by the Management which is mandatory as held by the Hon''ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, , that the requirement of the proviso to section 33(2)(b) is mandatory. Failure to make an application for approval of the order of discharge or dismissal before the Authority where the proceedings are pending, renders the order of discharge or dismissal void and inoperative. This legal proposition has also not been disputed by the learned Counsel for the parties. Findings as recorded by the Labour Court do indicate that the proceedings were pending before the Deputy Labour Commissioner, Faridabad, as the conciliation proceedings with regard to the settlement between the parties were pending. The Charter of demand was settled outside the office of the Deputy Labour Commissioner which was recorded in writing in the office of the Deputy Labour Commissioner on 10.6.1994 and the same was signed by the Management, the Workers'' union and the Deputy Commissioner, resulting in the tripartite agreement. It is further the admitted position that the services of both the workmen were terminated before the said settlement came into existence as the date of dismissal in the case of D.K. Goel is dated 5.1.1994 whereas in the case of Tilak Raj Bhardwaj, it is 18.6.1993.
Counsel for the petitioner after referring to the factual position as has been enunciated above, has submitted that the petitioner-Management being a progressive employer has been entering into long term settlements with its workmen. Such settlements were arrived at in 1980, 1986 and then in 1994. Each of the said settlement provided that the same would be for a period of four years. The said "Settlements endured/continued till the same were terminated in accordance with law. After the settlement in the year 1986, the next settlement which was due after four years was in the year 1990 and accordingly a Charter of Demands dated 2.7.1990 was submitted by the workmen to the Management. The said Charter of Demands was subsequently amended and this amended Charter of Demands dated 17.9.1990 was submitted to the Management and the demands were found unreasonable and unjustified. Negotiations took place but no settlement could be entered into between the Management and the Workers.
A demand notice dated 30.11.1990 was served by the Union and on that basis, conciliation proceedings were held. The said proceedings resulted in failure and a communication to that effect dated 26.7.1991 (Annexure P-8) was received wherein the Appropriate Government conveyed that it does not find all demands in the demand notice dated 30.11.1990 fit to be referred to the Court as the wage structure and other conditions of employment of Larsen & Toubro Ltd. was good and sound in comparison to other engineering industrial units. Apart from this, the Management was willing to negotiate and settle the demand notice on the basis of the established formula of Region-cum-Industry. This order was challenged by the Larsen & Toubro Employees'' Association in the High Court by filing C.W.P. No. 17040 of 1991 which was disposed of by a Division Bench of this Court vide its order dated 25.11.1991 which reads as follows:-
Counsel heard. Learned Counsel made a statement at the Bar that in case the Management is still ready and willing to negotiate and settle the dispute as per the Charter of Demands, the petitioner-Association shall not bring Mr. S. Nayyar. Mr. S. Nayyar, General Secretary of the Association, shall not intervene and shall not represent the Union in such negotiations. That being so and in view of the statement made in Annexure P-10, we observe that in case the petitioner- Association still makes an approach to the Management for settlement of the demand as contained in Charter of Demands, the negotiation may go ahead and the Management shall consider and negotiate with the petitioner-Association. With these observations, the petition is disposed of. Dasti be given.
On this basis, Counsel submits that the conciliation proceedings terminated with regard to the demand notice dated 30.11.1990 firstly, through communication dated 26.7.1991 (Annexure P-8) and thereafter when this Court passed the above-mentioned order on 25.11.1991. He, therefore, contends that no proceedings were pending before the Labour Court when the orders of dismissal dated 5.1.1994 in the case of D.K. Goel and 18.6.1993 in the case of Tilak Raj Bhardwaj came to be passed. He, thus, contends that the findings as receded by the Labour Court are based on no evidence and are perverse and thus, cannot be sustained with regard to the fact that the proceedings as envisaged u/s 33 of the Act were pending before the Authority. In this view of the matter, the award passed by the Labour Court, cannot be sustained.
The next attack of the Counsel for the petitioner on the impugned award is that the power exercised by the Labour Court u/s 11-A of the Act is not appropriate, while holding the order of dismissal as unjustified. He has referred to the charges against the workmen. He submits that the charges are of very grave and serious nature as the workmen had not only obstructed the normal operation of the factory but had used unparliamentary language, hurled, abuses and raised provocative slogans against the Management staff and had misbehaved and threatened the Supervisory staff and the co-workers, and further resorted to strike and riots/disorderly behaviour during the working hours at the establishment. He contends that the Labour Court in its order has come to a categoric finding wherein the jurisdiction with regard to holding of the enquiry was treated as a preliminary issue and has accepted that the enquiry proceedings were held in a just and proper manner and there was no illegality in the conduct thereof. The findings, therefore, with regard to misconduct of the workmen stood proved and when such grave allegations were proved against the workmen, the exercise of powers u/s 11-A of the Act in the present cases were totally uncalled for and was against the settled canons of law. He relies upon judgment of the Hon''ble Supreme Court in the case of Usha Breco Mazdoor Sangh Vs. Management of Usha Breco Ltd. and Another, , to contend that the powers u/s 11-A of the Act are to be exercised by the Labour Court judiciously and with restraint. It ought not to substitute its own view merely because two views are possible on the basis of evidence on record. Where the Labour Court concludes that the domestic enquiry was conducted in accordance with principles of natural justice and findings in the enquiry report were not perverse, the Labour Court''s interference is not warranted.
On the other hand, learned Counsel for the respondent has contended that both these workmen were protected workmen as provided for u/s 33(3) of the Act. It is not in dispute that D.K. Goel was the President and Tilak Raj Bhardwaj was the Secretary of the Workers'' Union and, therefore, the mandate of section 33 requiring the management to seek express permission in writing of the Authority before which the proceedings are pending, is all the more essential. He submits that the official from the office of the Deputy Labour Commissioner, Faridabad i.e. Shri Dayanand, Sr. Scale Stenographer who appeared as MW-2 placed on record documents Exhibits MW2/1 to MW2/3 which pertained to the Charter of Demands of the workmen and further admitted Exhibits W-6 to W-11 in his cross-examination i.e. the letters issued by the office of the Deputy Labour Commissioner which precede the Conciliation Settlement (Exhibit W-1) dated 10.6.1994. He, on this basis, submits that on the day the orders of dismissal dated 5.1.1994 in the case of D.K. Goel and 18.6.1993 in the case of Tilak Raj Bhardwaj were passed, the conciliation proceedings were pending before Deputy Labour Commissioner, Faridabad. He has produced certified copies of these Exhibits in Court. He, thus, contends that it being an admitted position that the provisions of section 33 of the Act have not been complied with, the Labour Court has rightly come to conclusion on appreciation of the evidence produced before it that the workmen were entitled to reinstatement in service. He further contends that the said order being void, the Labour Court had no option but to proceed and exercise its powers u/s 11-A of the Act and having gone through the same, has come to a conclusion that the punishment given to the workmen is disproportionate to the charges proved against him and has only granted 60% of back-wages whereas in the light of the judgment passed by the Hon''ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, , the workmen were entitled to full back-wages and, therefore, he prays for the said relief. Counsel further contends that while exercising the powers under the writ jurisdiction, this Court would not be justified in re-appreciating the evidence which has already been considered and taken into account by the Labour Court. The High Court would not sit as a Court of appeal over the findings of fact recorded by the Labour Court and no interference is called for in the award of the Labour Court unless the finding of fact is either perverse or based on no evidence. For this contention, he relies upon a judgment of this Court in the case of State Transport, Punjab v. Gurjit Singh. 2001 (4) SCT 386 He, therefore, contends that the award passed by the Labour Court which is based on proper appreciation of the pleadings and evidence so produced on record before it, does not call for any interference and deserves to be upheld.
I have heard learned Counsel for the parties and have gone through the records of the case with their able assistance. The question, therefore, hinges upon the basic factual aspect as to whether the proceedings were pending before the Authority with regard to the demand of the workmen for a tripartite settlement. A perusal of the records of the case would show that Exhibit W-11 is. dated 27.8.1992, which is letter of the Deputy Labour Commissioner addressed to the Manager of the petitioner-company as well as to the President and General Secretary of the Employees Union calling upon the parties to appear in his office on 2.9.1992 at 12.00 noon for the conciliation proceedings with reference to the demand notice. Exhibit W-10 is the letter of the Deputy Labour Commissioner on 18.5.1993 which again is addressed to the Manager of the petitioner-company and the General Secretary of the Workers'' Union to come present for a meeting on 26.5.1993 at 12.00 noon along with the records in his office at Chandigarh. Exhibit W-9 is letter dated 30.7.1993 from the Deputy Labour Commissioner, Faridabad addressed to the Manager of the petitioner Company with a copy thereof to the President and the General Secretary of the Workers'' Union requesting them to come for a meeting on 31.7.1993 at 10.00 a.m. in his office at Faridabad. Exhibit W-8 is letter dated 28.9.1993 which again is from the Deputy Labour Commissioner, Faridabad to the Manager of the petitioner-Company and to the President and General Secretary of the Workers'' Union requesting them to come present for conciliation in his office on 29.9.1993 at 10.00 a.m. Exhibit W-7 is letter dated 10.1.1994 from the Deputy Labour Commissioner, Faridabad, informing the Manager of the petitioner-company and the President and General Secretary of the Workers Union that a conciliation meeting under the Chairmanship of the Labour Commissioner stands fixed on 12.1.1994 at 2.30 p.m. in the office of the Labour Commissioner at Chandigarh. Exhibit W-6 is the letter from the Deputy Labour Commissioner, Faridabad to the Manager of the petitioner-Company and the President and the General Secretary of the Union informing them that the next conciliation meeting has been fixed for 9.3.1994 at 12.30 p.m. under the Chairmanship of Joint Labour Commissioner, Haryana at Chandigarh in his office. All these letters clearly show that from 27.8.1992 till the culmination of the conciliation proceedings in the form of tripartite settlement Exhibit W-1 dated 10.6.1994, the conciliation proceedings were going on. The dismissal orders passed against D.K. Goel on 5.1.1994 and the dismissal order dated 18.6.1993 passed against Tilak Raj Bhardwaj came into existence during the pendency of these proceedings. The contention, therefore, of the Counsel for as the petitioner that the conciliation proceedings with regard to the demand notice having come to an end with the passing of order dated 26.7.1998 by the Appropriate Government is not correct. Further, a perusal of this order dated 26.7.1998 (Annexure P-8) would show that the Government also was of the view that all the demands of the Workers'' Union in its demand notice dated 30.11.1990 were not fit to be referred to the Court. Apart from this, the petitioner-Management was willing to negotiate and settle the demand notice. This clearly indicates that the process of negotiation was all through on and it had not come to an end.
In view of the admitted position that no application was preferred by the petitioner-Management for seeking permission of the Authority before which the proceedings were pending, the orders of dismissal of the workmen, namely, K. Goel and Tilak Raj Bhardwaj dated 5.1.1994 and 18.6.1994 are void and, thus, cannot be sustained in the light of the judgment of the Hon''ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, wherein it has been held that proviso to section 33(2)(b) of the Act is mandatory and hence, failure to make an application for approval of the order of discharge or dismissal renders the order of discharge or dismissal void and inoperative. Section 33(3) under which the protected workmen are covered is much more stringent than section 33(2)(b) and, therefore, added protection has been provided to such workmen. In the present case, respondent-Workmen-D.K. Goel was the President and Tilak Raj Bhardwaj was the General secretary of the Worker''s Unions and, therefore, the orders of dismissal qua them are bad in law.
In view of the above, there is no merit in the present writ petitions and, therefore, the same are hereby dismissed.
Since the main case itself has been decided on merits, no further orders are required to be passed in C.M. Nos. 9542 of 2008 and 2719 of 2009 in C.W.P. No. 9431 of 2001 and C.M. Nos. 9541 of 2008 and 2718 of 2009 in C.W.P. No. 9621 of 2001.