Judgment:
CWP No.24811 of 2013 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.24811 of 2013 Date of decision: 27.01.2014 Punjab Remote Sensing Centre and another ...Petitioner(s) Versus Presiding Officer, Industrial Tribunal, Ludhiana and another ...Respondent(s) CORAM: HON'BLE Mr.JUSTICE G.S.SANDHAWALIA Present: Mr.HNS Gill, Advocate, for the petitioneRs.G.S.SANDHAWALIA, J.
(Oral) The present writ petition has been filed challenging the award dated 07.08.2013 passed by the Industrial Tribunal, Ludhiana whereby, the reference has been allowed to the extent that the workman has been ordered to be reinstated in service with continuity but without back wages.
The order of termination has been substituted with the punishment of stoppage of three annual increments with cumulative effect.
The respondent-workman, who is an ex-serviceman, was appointed as a Chowkidar with the petitioner-management on 04.02.1991 and was confirmed on 17.05.1993.
Thereafter, the post was re-designated as Chowkidar-cum-mali to which, he objected and filed a civil suit.
Thereafter, he was placed under suspension from 29.07.1997 and was issued a charge sheet on 17.02.1999.
To the show cause notice dated 10.11.1999 which was issued to him, he submitted his reply on 25.11.1999 and his Gupta Shivani 2014.02.13 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.24811 of 2013 2 services were terminated vide order dated 20.12.1999.
Appeal filed by him against the order of termination was rejected by the Appellate Authority on 01.06.2000.
Accordingly, he raised the industrial dispute.
The claim was contested by the petitioner-management that the services of the workman had been terminated after following proper procedure and conducting inquiry and the misconduct on his part was proved.
The initial appointment was of a Chowkidar and the post was abolished on 03.07.1998 and a new post of Chowkidar-cum-Mali was created and persons working were given option for the new post within seven days and he opted for the same on 09.07.1998.
The Inquiry Officer was appointed to conduct the inquiry and he had submitted his report and the charges were fully proved against the workman.
He was given second show cause notice and after hearing him, order of termination was passed, which was upheld in appeal.
The workman examined himself as WW1 whereas the petitioner-management examined Dr.
H.K.Tiwari, who was the Inquiry Officer.
After examining the record, the Labour Court came to the conclusion that a fair and proper inquiry had been conducted against the workman, who had participated during the inquiry throughout and there was nothing to suggest that the inquiry conducted against the workman was not proper and fair.
The issue regarding whether the petitioner-management was an industry was not pressed and it was held against the management.
Regarding issue No.3 whether the order of termination of services of the workman were justified or not, the Labour Court came to the conclusion that the punishment inflicted was a little too haRs.and on the higher side.
The Labour Court noticed that the allegation against the petitioner was that Gupta Shivani 2014.02.13 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.24811 of 2013 3 he had challenged the authority of his superiors when his explanation was called for due to the leave he had taken.
This amounted to misconduct on his part on account of the language he had used in his letters dated 08.10.1997, 08.06.1998 and 18.06.1998.
He, on one occasion, was found sleeping while on duty but it was held that instead of terminating his services, the next lower punishment could have been imposed upon him.
Accordingly, the termination order was substituted with the stoppage of three annual increments with cumulative effect and the relief of reinstatement was given with continuity of service without any back wages.
On 13.01.2014, when this matter was listed, counsel for the petitioner had taken time to seek instructions as to whether the management was willing to compensate the workman for his termination in view of the fact that he had only 3 to 4 years service left being an ex-serviceman and keeping in view his rigid attitude, it was difficult to take work from him.
Counsel for the petitioner, on instructions today, apprised the Court that the petitioner is due to retire on 31.01.2014 and he is not having 3-4 years of service, as pointed out earlier and it is not possible to compensate him for his misconduct.
Leaving that apart, this Court is of the opinion that there is no scope for interference in the present writ petition.
Admittedly, under Section 11-A of the Industrial Disputes Act, 1947 (in short 'the Act').the Labour Court has the power in the adjudication proceedings to record its satisfaction regarding the order of discharge or dismissal and whether it was justified or not and direct reinstatement on such terms and conditions, if any, as it thinks fit including giving other relief of lesser punishment in lieu of discharge or dismissal, as the circumstances of the case may require.
In Gupta Shivani 2014.02.13 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.24811 of 2013 4 exercise of such statutory power, the Labour Court, in the present case, has substituted the punishment of dismissal with the stoppage of three annual increments with cumulative effect.
It is to be noticed that the workman had as many as 8 years of service at the time of his termination and if that is to be kept in mind, the order of dismissal on the ground of using intemperate language in his reply was, no doubt, harsh.
The finding recorded by the Labour Court thus, cannot be held to be suffering from any illegality.
The Apex Court in U.B.Gadhe and others versus G.M., Gujarat Ambuja Cement PVT.LTD.2007 (13) SCC634has held that under Section 11-A, Labour Court has the jurisdiction to alter the quantum of punishment.
The relevant portion reads thus:- “18.
It is not necessary to go into in detail regarding the power exercisable under Section 11-A of the Act.
The power under said Section 11-A has to be exercised judiciously and the Industrial Tribunal or the Labour Court, as the case may be, is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that punishment imposed by the management is wholly and shockingly disproportionate to the degree of guilt of the workman concerned.
To support its conclusion, the Industrial Tribunal or the Labour Court, as the case may be, has to give reasons in support of its decision.
The power has to be exercised judiciously and mere use of the words 'disproportionate’ or ’grossly disproportionate’ by itself will not be sufficient.”
.
It has time and again been held by the Apex Court that while exercising the powers of writ jurisdiction under Article 226 of the Constitution of India, this Court is to exercise its power only in appropriate Gupta Shivani 2014.02.13 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.24811 of 2013 5 cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice has taken place.
The High Court will not convert itself into a Court of appeal and indulge, appreciate or evaluate evidence and correct errors in drawing inferences or correct errors of mere formal or technical character.
The said principle was laid down in Surya Dev Rai versus Ram Chander Rai and otheRs.2003 (6) SCC675 It is where the Tribunal has acted illegally in exercise of jurisdiction conferred on it and decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted in dealing with the dispute is opposed to the principles of natural justice, this Court would interfere.
The error of law has to be apparent on the face of the record and it has to be manifestly clear that the conclusion of law recorded by the Tribunal is in misinterpretation of the relevant statutory provisions or in ignorance in regard of the same.
Thus, what can be corrected is an error of law, which would be of such character which is apparent on the face of the record and if the statutory provision is capable of two constructions and one of it had been adopted by the Tribunal, it may not be desirable to correct the same by way of writ of certiorari.
In the present case, no such error of law or fact has been shown which would warrant interference by this Court while exercising jurisdiction under Article 226 of the Constitution of India.
Accordingly, this Court is of the opinion that the impugned award does not suffer from any illegality or irregularity which would warrant interference.
The facts also further go on to show that the workman will be retiring by the end of this month and therefore, the apprehension of the petitioner-institute that it was not possible to take work from him due to Gupta Shivani 2014.02.13 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.24811 of 2013 6 his rigid attitude does not survive any more.
Accordingly, there is no merit in the present writ petition and the same is dismissed in limine.
27.01.2014 (G.S.SANDHAWALIA) shivani JUDGE Gupta Shivani 2014.02.13 15:36 I attest to the accuracy and integrity of this document High Court Chandigarh