Vigyan B.Saxena vs Presiding Officer,Industrial Tribunal,No.2,U.P.Lucknow & Anr.

Mrs. Shohha Dikshit J.

This writ petition is directed against the Award dated 2191994 passed by the Industrial Tribunal No. 2, Lucknow upholding the order of dismissal of the petitioner, passed by the employers M/s. Voltas Limited as legal and valid.

Petitioner was offered the post of Stenographer on regular basis by opposite party No. 2 vide its letter dated 131972. He was subsequently confirmed vide orders dated 2291972. According to the petitioner, he continued to work with sincerity and loyalty and discharged the duties assigned to him to the entire satisfaction of the management. However, the problem arose when the petitioner got himself enrolled as an active member of Voltas and Volkart Employees'' Union, U.P. and because of his active participation in the legal trade union activities, the management got annoyed and his relations with the management became strained. This led to issuance of chargesheets to the petitioner on allegations of insubordination from the year 1985 on wards. A chargesheet was accordingly issued on 621986 and Sri R. C. Srivastava was appointed the Enquiry Officer who was the Legal Advisor of the employers. The petitioner apprehending that such an enquiry would not be fair and impartial, filed a writ petition No. 4480 of 1986 before this Court with the prayer that the Enquiry Officer be changed. This writ petition was disposed of at the preliminary stage itself vide orders dated 1191989 with the observation that it is expected from the employers that they will change the Enquiry Officer against whom the petitioner had made allegations. According to the petitioner, this enquiry simply dragged on and while it was pending, another chargesheet dated 611989 was issued to him, a true copy of which is annexed as Annexure7 to the writ petition. Two charges were levelled against the petitioner amounting to grave misconduct. The first charge was that he failed to deposit with the Accounts Departments of the Company a cheque dated 3111989 issued by one of the dealers for Rs. 22,291 and because of this lapse, another cheque had to be obtained from the said dealer which lowered the reputation of the employer Company. The second charge related to the denial by the petitioner to receive the memos issued to him in the office as well as at his residence in this connection which was an act of insubordination disobedience. Petitioner submitted a reply denying the same vide his letter dated 10/1221986. The employers again appointed Sri R. C. Srivastava as Enquiry Officer to hold the enquiry in spite of petitioner''s objection. The said Enquiry Officer proceeded with the enquiry exparte and submitted the enquiry report, on the basis of which, the employers dismissed the petitioner from service vide orders dated 26121989 on the ground that the petitioner is guilty of misconduct as alleged in the chargesheet and also because of his unsatisfactory past conduct where by warnings were issued to him on several occasion. A copy of the impugned order has been annexed as Annexure16 to the writ petition. Aggrieved by the same, petitioner approached the Conciliation Officer who referred the matter to the State Government along with his recommendations for referring the industrial dispute for adjudication. The State Government accordingly referred the dispute for adjudication under Section 4K" of the U.P. Industrial Disputes Act (here after referred to as the Act) to the Industrial Tribunal at Lucknow. Both parties filed their written statements. The stand of the petitioner was that the order of dismissal has been passed simply to victimise him and the domestic enquiry was a sham and partisan expane enquiry, hence the order of dismissal passed on the basis of such an enquiry is illegal and unconstitutional. The stance of the management on the other hand was that the work and conduct of the petitioner was not at all upto the mark and he was warned and cautioned in past on several occasions for acts of indisipline and insubordinate. The enquiry was said to have been conducted in accordance with the principles of natural justice giving full opportunity to the workman to place his defence but since he avoided to participate in the enquiry, the same had to proceed exparte. On the pleadings of the parties, a preliminary issue was framed by the Industrial Tribunal as to whether the domestic enquiry conducted by the management is not fair and proper and if so, its effect. Petitioner had opposed the framing of the preliminary issue but his objection was rejected. The said preliminary issue was decided by the learned Tribunal vide orders dated 21111994 in favour of the workman and it was found that the enquiry conducted by the Enquiry Officer Sri. R. C. Srivastava was unfair, illegal and unconstitutional. The learned Tribunal after holding the enquiry illegal gave an opportunity to the parties to lead evidence to establish their respective cases. The management led the evidence but the petitioner did not adduce any fresh evidence. The Tribunal after appreciating the evidence and the pleadings of the parties gave the impugned Award upholding the order of dismissal. Aggrieved by the said Award, petitioner has approached this Court under Article 226 of the Constitution of India by filing the instant writ petition.

Petitioner appeared in person and argued his case himself. The management was represented through its counsel. I have heard both of them.

Petitioner has challenged the impugned Award primarily on three grounds. Firstly.that the Tribunal misread the evidence led before its, hence, the findings recorded by it upholding the order of dismissal is erroneous and illegal. Secondly, the learned Tribunal failed to record any finding whether the alleged acts of commission and omission by the petitioner constituted misconduct or not and if so, under which provisions of law, the certified standing orders as claimed by the employers or under U.P. Shops and Commercial Establishment Act, 1962 is asserted by the workman and lastly, even if the alleged misconduct was found the have been established under the law applicable to the petitioner, then whether the extreme punishment of dismissal from service is appropriate proportionate or not in the facts and circumstances of this case.

In support of the first contention, petitioner referred to the Award in question. He submitted that the learned Tribunal has discussed in great detail the evidence led by the employers and has come to the conclusion that the cheque in question was factually received by the petitioner and it is he who prepared the invoice but when the same did not reach in the Accounts Section for 56 days, then the dealer was called upon to issue another cheque which in the opinion of the Tribunal also had lowered the reputation of the Company. The Tribunal has also come to the conclusion that the petitioner did refuse to accept the office memo on 2291988 and, 2121988 which are acts of insubordination and indiscipline. Though the learned Tribunal has noticed the evidence of the petitioner that the impugned action was initiated against him because he had brought the acts of favouritism and financial irregularity committed by the Branch Manager Sri S. K. Mehrotra in collusion with one, Sri Gurudata in light, therefore, he is being victimised but no finding in this regard has been recorded by the learned Tribunal.

The petitioner laid great emphasis on the fact that it was never the case of the employers that it was one of the duties assigned to the petitioner to receive cheques or that he embezzled or misappropriate the amounts. Even if the charge is accepted as such, the maximum which one could infer was that it was a lapse or an act of carelessness on his part. According to the petitioner, in this respect, the learned Tribunal completely ignored to appreciate the deposition made by the petitioner himself that on several occasions in pat, cheques had been misplaced in the branch office by several other employees and one such employee being Anup Tandon but the management had taken no action against them or Anup Tandon but when the cheque was misplaced by the petitioner for once, it certainly did not attract the extreme penalty of dismissal from service, Petitioner, therefore, contended that it is a clear case of vindictiveness and he has been awarded the extreme punishment with a view to throw him out. Therefore, the finding holding the petitioner guilty is wholly perverse and is either based on no material or misappropriation of the evidence on record.

While elaborating on this aspect of the matter, the petitioner further obtained that once the Tribunal in its Award had clearly come to the conclusion that it was not proper on the part of the employers to take into consideration the past conduct of the petitioner specially because the same was not mentioned in the charge sheet and petitioner was not put to notice while passing the order of dismissal, then in the teeth of such clear findings, it could not uphold the order of dismissal based on past record. Merely because the petitioner had accepted that once or twice in past, he had accepted his fault would not permit the employers to consider the whole of the past conduct once again while passing the order of dismissal when the same was not mentioned in the charge sheet. There is substantial force in what the petitioner contends because so far as this part of the Award is concerned, there is apparent contradiction in it.

In para 11 of the Award there is a categorical finding that the reference to past conduct in the written statement for years 19741988 onward has no relevance to the reference in question. The learned Tribunal again reiterated the same view in the first part of para 18 but in the later part of the same para, learned Tribunal finds that petitioner''s own admissions with regard to earlier punishment goes to show that he is capable of making an alteration in records for obtaining medicines. This has reference to petitioner''s admission that he had added some eye drops in the prescription of the doctor, for which he was duly punished by suspending him for a day without wages on 20th February, 1983 and Rs. 5708 pm. towards the cost of the said medicine was recovered from him. Thus the Tribunal has erred in taking into consideration the past conduct of the petitioner while adjudicating the dispute. Thus there appears total non application of mind.

Petitioner next contended that the certified standing orders if any were not applicable on him and his case and alleged conduct ought to have been examined in the light of the provisions of U.P. Shops and Commercial Establishment Act, as per terms of his appointment. Since specific plea in this regard was raised, the Tribunal was obliged to consider this ground of challenge and given appropriate findings. I have perused the order of appointment as also Section 19(2) of U.P. Shops and Commercial Establishment At, 1962 read with Rule 15 where the acts constituting misconduct have been provided. From the statement filed by the petitioner before the learned Tribunal, it is clear that such a legal plea was raised but the Tribunal had not at all addressed on it and has failed to give any finding as to whether certified standing orders or the provisions of U.P. Shops and Commercial Establishment Act, 1962 were applicable in the facts and circumstances of this case. The certainly has vitiated the Award because the learned Tribunal was obliged to decide this issue and then only to give a finding as to whether the acts and omissions allegedly committed by the petitioner did constitute the misconduct as defined in the provisions applicable to the petitioner.

Lastly, it was contended by the petitioner that the Award is also liable to be quashed because though it had discussed the evidence and has given the finding that the charges stand proved but has not considered the question of quantum of punishment. According to the petitioner, the extreme penalty of dismissal is disproportionate to the alleged act of misconduct even if it is assumed to be proved against the petitioner.

I have given my anxious consideration to the arguments raised by the petitioner.

Section 6(2A) of U.P. Industrial Disputes Act is analogous to Section 11 A of the Central Industrial Disputes Act which has been added with the object to enlarge the scope of the Labour Courts Tribunals and the same reads as follows:

Section 6(2A)

"An Award in an industrial dispute relating to the discharge or dismissal of a workman may direct the setting aside of the discharge or dismissal and reinstatement of the workman on such terms and conditions, if any, as the authority making the award may think fit, or granting such other relief to the workman, including the substitution of may lesser punishment for discharge or dismissal, as the circumstances of the case may require."

A perusal of this Section shows that a Labour Court or Tribunal in the course of adjudication proceedings is obliged to satisfy itself about propriety of penalty of discharge or dismissal inflicted upon a workman. Merely saying that the charges have been proved against the workman and they were of serious nature does not mean that statutory duty cast upon the Labour Court stands discharged. The Court has to disentangle charges and categories them properly so as to come to a categorical finding as to what has constituted the misconduct in question. Court exercising such power after it finds that the misconduct is proved is first obliged to advert itself to the question of necessity or desiraoility to interfere with the punishment imposed by the management and if the management could not justify the punishment there after then the Tribunal must consider the question as to the appropriate relief to be given to the employee workman. The statutory man date embodied in the aforesaid provisions is not merely to make a passing reference in the award that the punishment is justified in view of gravity of misconduct, rather it is the obligation of the industrial Court to consider the question of punishment and its quantum specifically.

At this juncture, it would be relevant to notice as pointed out by the petitioner that assuming the it was his duty to accept the cheques but merely because he committed lapse in not depositing the same with in 56 days, it would not in itself constitute a misconduct. Admittedly, it is not the case of the management that the petitioner misappropriated the money, gained financially etc. At the most, only carelessness can be ascribed to him. Since it was the first incident, hence he could also not be labelled as habitually negligent. According to the petitioner, the charge of lowering the reputation of the Company is also baseless and imaginary too. He submitted that merely because the cheque was misplaced and a second cheque had to be issued, it could not be inferred that the reputation of the Company was adversely affected. The Tribunal failed to notice that there was no material to reach to this conclusion even while deposing that he did not like issuing a second cheque or that he was unhappy because the cheque given by him was misplaced. The Tribunal, therefore, accepted the imaginary case set up by the management.

In Rajinder Kumar Kindra v. Delhi Administration on through Secretary (Labour) and others, 1984 (4) SCC 635, one of the salesman working with Ms. Raymonds Woollen Mills Limited was served with a charge sheet that he while acting as a salesman with the ManagercumCashier of the said show room and issued various cheques in the amount of Rs. 15,000 and odd from his own cheque hook with the ulterior motive by submitting some bogus cheques into she mills account and there by caused unlawful gains to himself and loss to the Company. A domestic enquiry was conducted where in it was held that the said salesman was found guilty of gross negligence and misconduct in the discharge of his duties he cause he was responsible for committing fraud on the company along with Sri R. S. Negi and on such findings, he was dismissed from service. The dispute was raised and by the award, the dismissal was upheld. He approached the High Court against the said award but the writ petition was also dismissed and the award was upheld. There after the said salesman took the matter to Hon''ble Supreme Court where the sole question raised was as to whether misuse of cheques by someone also because the same were kept negligently would amount to misconduct on his part. The admitted ease of the parties was that it was a ManagercumCashier who had misused the cheque forms from the cheque book of the appellant in respect of his private account and he embezzled funds of the employer. It was not the case of the employer that the appellant draw cheqpes or with drawn the amount from the bank. It was also conceded by the employers that there was not even an iota of evidence which could indicate that the appellant issued a cheque himself or that he abetted or issued some bogus cheques. In spite of this, the learned Labour Court found that the charges stood proved. In these facts and circumstances, Hon''ble Supreme Court held that the learned Arbitrator failed to apply its mind and accepted the findings of the Enquiry Officer which were per se perverse. The said award was found to be based on no legal evidence and suffered from the additional infirmity of total nonapplication of mind and according to Hon''ble Supreme Court, any finding of misconduct based on absence of evidence, must fail. In the aforesaid face and circumstances. Hon''hie Supreme Court held as follows while discussing the scope of Section 11A of Central industrial Disputes Act which is analoguous lo Section 6(2)A of U.P. Industrial Disputes Act.

"We nave not at all attempted to reappreciaie the evidence though in exercise of the jurisdiction conferred by Section 11A of the Industrial Disputes Act, 1947 both arbitorator and this Court can reappraise the evidence led in the domestic enquiry'' and satisfy itself whether the evidence led by the employer established misconduct against the workman. It is too late in the ciay to contend that the arbitrator has only the power to decide whether the conclusions reached by the enquiry officer were plausible one deducible from the evidence led in the enquiry and not to reappreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not. This Court in Workmen of firestone lyre and Rubber Company of India (P) Ltd. v. Management, held that since the introduction of Section 11A in the Industrial Disputes Act. 1947. the Industrial Tribunal is now equipped with the powers to reappraise tru evidence in the domestic enquiry and saiish itself whether the said evidence relied upon by the employer establishes the misconduct alleged against the workman. It is equally wellsettled that the arbitrator appointed under Section 10A is comprehended in Section 11 A. This Coun in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sablw. held that an arbitrator appointed under Section 10A of the Industrial Disputes Act, 1947 is comprehended in Section 11A and the arbitral reference apart from Section 11 A is plenary in scope. Therefore, it would be with in the jurisdiction both of the the arbitrator as well as this Court to reappreciate the evidence though it is not necessary to do so in ihis case. It is thus wellsettled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under Section 10A or this Court in appeal under Article 136 can reject such findings as perverse. Holding that the findings are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of powers conferred by Section 11A to do so."

In yet another case, Rama Kant Misra v. State of Uttar Pradesh and other 1982(3) SCC 346, Hon''ble Supreme Court held that the punishment must be for misconduct. In this case, the alleged misconduct was disorderly behaviour punishable under the relevant standing orders. The workmen were placed under suspension pending departmental enquiry and on the basis of the departmental enquiry the services of the said 19 workmen were terminated. The Hon''ble Supreme Court after considering the matter at length came to the conclusion that the Labour Court has the jurisdiction and power to substitute its measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal is not justified in the facts and circumstances of the case. The Courts can always examine whether the Labour Court has properly approached the matter for exercising or refusing to exercise its power under Section 11A. It further held that even though misconduct is proved and a penalty has to be imposed the extreme penalty of dismissal or discharge is justified or not in the facts and circumstances of the case should be examined, as the penalty must commensurate with the punishment with the gravity of the offence charged.

In the case of Workmen of Firestone Rubber Co. of India (P) Ltd. v. Management and others, 1973(1) LLJ 278, Hon''ble Supreme Court held as follows:

"The Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by employer established the misconduct alleged against a workman. What was originally a plausible condition, that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of a misconduct is correct. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if a proper case is made out. What was once largely in realm of the satisfaction of the employer, has ceased to be so and not it is the satisfaction of the Tribunal that finally decides the matter. The Tribunal may hold that the punishment is not justified because the misconduct alhged and found proved is such that does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself.

A perusal of the aforesaid decisions of the Hon''ble Supreme Court and the provisions of law make it very clear that the Tribunal is now even clothed with every wide powers including the power to reappreciate the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible condition that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of a misconduct is correct. The Tribunal is not also at liberty to differ and disagree with the management on the question of nature of punishment. What was once largely the satisfaction of the employer, has ceased to be so and not it is the satisfaction of the Tribunal that finally decides the matter, the Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is not such that may warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence on record.

In the present case, two things are very clear (1) that after holding the domestic enquiry, illegal, it was open to the Industrial Tribunal to appreciate the evidence on record afresh including the additional evidence led before it and then to come to the conclusion whether the charges levelled against the workman have been proved and if so whether the same constitute a misconduct or not. In my opinion, the ''Tribunal has failed to record such a finding. In fact, the error of law has crept in because the Tribunal did not adjudicate upon the issue as to whether the certified standing orders were applicable to the case of the workman or the provisions of Act of 1962 were applicable as per the terms of the appointment of the workman. It has also failed to indicate the specific misconduct provided in either of the provisions under which the case of the petitioner could fall. The petitioner is perfectly justified to assail the award on the ground that the finding that the petitioner is guilty of committing the alleged misconduct is based on no material. There is no finding that it was petitioner''s assigned duty to receive these cheques and he failed to discharge his duty or he misplaced the cheque with unltcrior motive or there is any finding of loss either to the company or to the dealer or there is an iota of. evidence that the dealer resented issuance of another cheque. In fact, according to the petitioner, the dealer continued to utilise his money for the time the cheque was not encashed and that misplacement loss, of cheque did not result into any financial loss to the payee. The finding that by loss of cheque, the reputation of the employer was tarnished is also based on no material. In fact, it is too unrealistic to come to such a finding when the dealer himself never resisted or objected to issuing another cheque or claiming interest on the money which remained with held blocked because of the loss of the cheque or for that matter cancelled the order which he had booked for which alleged payment was made through the cheque. The Tribunal also committed manifest error when it justified the correctness of the order of dismissal passed on past conduct of the petitioner when it categorically held that since the past conduct was not mentioned in the chargesheet, therefore, it was not open to the employers to place any reliance on the same for passing the impugned order. Inspite of this finding, the Tribunal upheld the order of dismissal which is clearly contrary to its own finding. Lastly, the Tribunal also failed to consider the question of quantum of punishment. There is neither any discussion nor any finding on the same. In these circun tances, the Award does suffer from serious legal infirmities and is liable to be set aside.

I, therefore, allow this writ petition and quash the Award dated 2191994 and remit the matter back to the Industrial Tribunal No. 2 for fresh consideration after hearing both the parties and give clear findings as indicated here in above including the question of quantum of punishment. As this dispute is pending since the year 1989 and a long period has lapsed, therefore, the learned Tribunal is directed to decide the matter afresh with in four months from the date a certified copy of this judgment is produced before it. Petitioner shall be entitled to cost quantified at Rs. 2500 Petition allowed.