V.K. Verma vs Hindustan Machine Tools Ltd. and Another

Jawahar Lal Gupta, J.—The petitioner who was working as a Stenographer in the Hindustan Machine Tools Ltd., Pinjore, respondent No. 1, was charge sheeted and ultimately dismissed from service vide order dated February 28, 1987. As a dispute between the petitioner and the Management was pending for adjudication under the Industrial Disputes Act, 1947, an application for approval of the action was filed by the respondent before the Industrial Tribunal, Faridabad. Ultimately, the case was transferred to the Presiding Officer, Labour Court, Ambala. Vide order dated March 23, 1992, the Court accepted the application of the respondent Management and approved the order of the dismissal of the petitioner- workman. Aggrieved by this action, the petitioner has approached this Court through the present writ petition. A few facts may be noticed.

The petitioner was charge-sheeted by the Management for certain acts of omission like absence from duty which allegedly amounted to misconduct under the Standing Orders. The petitioner submitted his reply. The respondent was not satisfied with the petitioner''s explanation. A regular enquiry was ordered against him. Mr. A.S. Kahlon, Personnel Officer (E), was appointed as the Enquiry Officer. Shri G.S. Kandelwal, Deputy Controller of Accounts was appointed as the Presenting Officer. The Enquiry Officer submitted his report on November 11, 1985. The charges were found to have been proved. The competent authority found that the petitioner deserved to be dismissed from service. However, since certain proceedings under the Industrial Disputes Act were pending before the Indus trial Tribunal, Faridabad, itwas considered necessary to obtain approval as envisaged u/s 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act''). The order of dismissal dated February 28, 1987 along with a Pay Order for an amount of Rs. 1327.10 representing one month''s wages was forwarded to the petitioner. A copy of this letter has been produced as Annexure P-1. Since the petitioner refused to accept the letter and the Pay Order personally, it was sent to him by post Simultaneously, an application was sent to the Industrial Tribunal, Faridabad for approval.

The application of the respondent-Management was opposed by the petitioner. Various objections were raised. The Tribunal framed the following issues:-

Whether the permission sought by the Management should be granted? OPM

Whether the enquiry is vitiated for the reasons stated in the reply? OPW

Relief.

On a detailed examination of the case, the Tribunal answered Issue No. 1 in favour of the Management and approved its action in dismissing the workman. This order, a copy of which is at Annexure P-3, has been challenged on different grounds which shall be presently noticed.

A written statement has been filed on behalf of the respondents controverting the claim made in the petition.

I have heard Mr. S.S. Nijjar, learned counsel for the petitioner and Mr. R.K. Chhibbar, for the respondent-Management.

Mr. Nijjar has contended that the impugned order is vitiated as the Labour Court had taken more than five years to decide the case.

He has further contended that the order of punishment was in fact vitiated as -(i) the petitioner having not been paid wages for the period of his absence could not have been charge sheeted and accused of mis-conduct on account of the same reasons;(ii) copy of the enquiry report was not given to him; (iii) the Enquiry Officer was junior to the Presenting Officer; (iv) the punishment is arbitrary and not commensurate with the mis-conduct alleged against the petitioner; and (v) the past record of the petitioner has been taken into consideration while deciding his case. These contentions have been controverted by Mr. Chhibbar, learned counsel for the respondent-Management.

Section 33 of the Act embodies a protection to the workman. It debars the employer from altering the conditions of service of a workman or punishing him by dismissal or otherwise during the pendency of proceedings before the Industrial authorities. Sub-section (1) grants this protection with regard to matters which are pending adjudication while Sub-sections (2) & (5) govern matters not connected with the dispute pending before an appropriate authority or Court Sub-sections (3) & (4) relate to a protected workman. According to Sub-section (2), whenever an employer wants to punish a workman for a misconduct not connected with the dispute pending adjudication, it has to pay wages for one month and make an application to the authority before which the proceedings are pending for approval of the action of dismissal etc. Sub-section (5) makes it obligatory on the authority to hear the application without delay and pass appropriate orders. Sub-section (5) does contemplate that the authority should hear and decide the application within a period of three months. However, it also authorises the authority to extend the time. It also provides that "no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed". It is thus clear that the provision embodies a rule which is directory and not mandatory. While the authority is expected to decide the case expeditiously, the proceedings before it cannot be said to have lapsed merely on the ground that the case was not decided within three months. Each case has to be examined on its own facts.

What is the position in the present case? The application had been initially filed by the respondent Management before the Industrial Tribunal, Faridabad as it fell within the territorial jurisdiction of the said tribunal. Subsequently, a new tribunal was constituted at Ambala. The application was accordingly transferred to the tribunal at Ambala. According to the respondents, the delay had been caused by the petitioner as he had sought adjournments on eight occasions. Furthermore, the case had to be adjourned four times on account of the strike by the Bar. The other adjournments had taken place on account of the reasons which were in no way attributable to the respondent Management. Categorical averments made in this behalf in paragraph 5 of the writ petition which have been reiterated in paragraph 9(e) have not been controverted by the petitioner by filing a rejoinder. In such a situation, it cannot be said that the management was responsible for the delay. Furthermore, even the impugned order cannot be held to have been vitiated especially when delay was not caused either by the management or by the authority itself. Consequently, the contention raised on behalf of the petitioner is untenable. It is accordingly rejected.

It was next contended that the management having deducted the wages of the petitioner for the days of his absence, he could not have been charge sheeted on the same ground and punished therefor. Para 8.5 of the Standing Orders inter alia provides that "any workman who after registering his attendance........is found absent from his proper place......during working hours without permission, shall be treated as absent for the time of his absence and his wages shall be subject to deduction in accordance with the provisions of the Payment of Wages Act, 1936......." Para 20 of the Standing Orders provides that disciplinary action can be taken for misconduct Para 21 deals with suspension and dismissal. It inter alia provides that "habitual late attendance, or leaving of work before the scheduled time or absence from place of work without proper permission or habitual negligence or neglect of work" shall be treated as misconduct.

On a perusal of the provisions of the Standing Orders governing the employees of the Hindustan Machine Tools Limited, it is clear that the management is entitled to deduct wages of an employee for his absence from duty in accordance with the Payment of Wages Act. It is not as a measure of penalty. The provision basically provides that wages shall be payable when an employee works. If he is absent, his wages shall be deducted. This is precisely what was done. The petitioner''s wages were deducted for the periods he remained absent. This was not as a measure of penalty. However, habitual late attendance or leaving of work does constitute misconduct Para 21 of the Standing Orders which enumerates different acts of omission as misconduct specifically provides for that. It also provides forthe imposition of penalty. The Management has proceeded in accordance with the provision in the Standing Order to charge-sheet and punish the workman. The action of the Management was in strict conformity with the provision of the Standing Orders. The validity of these provisions has not been challenged. The action being in conformity with the provisions, no fault can be found with the impugned action. Consequently, even the second contention is rejected.

Mr. Nijjar then contended that the impugned action is vitiated as the copy of the Enquiry report was not given to the petitioner. Reliance was placed by him on the decision of the Supreme Court in Union of India and others Vs. Mohd. Ramzan Khan, ) as reported. This contention has no merit.

There is no provision in the Standing Orders which may require the management to supply a copy of the enquiry report to the delinquent-employee. In fact, the report has to be considered by the appropriate authority and the order of dismissal can be passed after the workman has been "informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him." The employer has been authorised to institute an enquiry before passing an order of dismissal. The employer is required to "take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist". This is precisely what has been done in the instant case. Furthermore, the petitioner cannot derive any benefit from the decision in Mohammad Ramzan''s case (supra) as the order of dismissal had in fact been passed on February 28, 1987 while the case was decided much later and it was categorically observed by their Lordships that it would be prospective in its operation. Consequently, even this contention cannot be sustained.

Mr. Najjar was at pains to point out that the Enquiry Officer was junior to the Presenting Officer. It has not been alleged that the Enquiry Officer was biased. He appeared as a witness before the authority. There was no suggestion that he was under any pressure or that he acted on account of an extraneous consideration. In such a situation, the contention has to be rejected.

Nor am I able to persuade myself to hold that the punishment awarded to the workman was arbitrary or not commensurate with the misconduct committed by him. Absence from duly admittedly amounts to misconduct The petitioner was found to be absent more than once. He was virtually a habitual absentee. In such a situation, if the management found that he deserved the punishment of dismissal and did not find any extenuating circumstances to warrant the imposition of a lesser penalty, no fault can be found with its action. The imposition of penalty is primarily a matter for the appropriate authority to consider. It is not a matter to be decided by the High Court. The employer having held that the petitioner deserved to be dismissed and its action having been approved by the tribunal, it would not be proper to interfere with the order in exercise of the powers under Article 226 of the Constitution.

Equally lacking in merit is the contention of Mr. Nijjar that the order is vitiated because the petitioner''s past record of service was taken into consideration. Reliance was placed in support of this contention on the decision of their Lordships of the Supreme Court in State of Mysore Vs. K. Manche Gowda, . That was a case of civil servant who was governed by the provisions of Article 311 of the Constitution. In the present case, it is clear that the Standing Order specifically provides that "in awarding punishment...the employer/manager shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist" The validity of this provision has not been challenged. The action of the authority is in conformity with the provision. I am unable to find any fault in the action of the respondents.

Accordingly, there is no merit in any of the contentions raised on behalf of the petitioner. The petition is dismissed. In the circumstances of the case, there will be no order as to costs.