German Remedies Ltd. Vs. Presiding Officer, Labour Court No. 1 and ors. - Court Judgment

Excerpt:
labour and industrial - reinstatement - industrial disputes act, 1947 - respondent no 2 was employed under petitioner - departmental enquiry conducted against respondent no 2 or some misconduct - after enquiry, order of dismissal passed against respondent no 2 - respondent no 2 submitted application under act for conciliation - government passed order of reference for adjudication of industrial dispute by respondent no. 1 - respondent no. 1 directed petitioner to reinstate respondent no 2 with 50% back wages - hence, present petition - held, order of reinstatement already passed posted at proper place - however, respondent no 2 not joined his place of posting on prescribed date - thus, order of grant of 50% back wages reduced to 25% back wages - accordingly, respondent no 2 entitled to.....orderr.k. gupta, j.1. the present petition challenges the award passed by the presiding officer, labour court no. 1, bhopal. the said award is placed on record as annexure p-l to the petition dated november 7, 1996. 2. the facts leading to the present case are that the respondent no. 2 was employed as a medical representative. he was issued a charge-sheet on march 5, 1990. thereafter another charge-sheet was issued to the respondent no. 2 on may 8, 1990. a departmental enquiry by the petitioner was conducted against the respondent no. 2. in the said enquiry the was found guilty of the charges and thereafter an order of dismissal dated october 31, 1990 was passed. 3. respondent no. 2 submitted an application for conciliation under the provisions of the industrial disputes act, 1947. on.....

Judgment:
ORDER

R.K. Gupta, J.

1. The present petition challenges the award passed by the Presiding Officer, Labour Court No. 1, Bhopal. The said award is placed on record as Annexure P-l to the petition dated November 7, 1996.

2. The facts leading to the present case are that the respondent No. 2 was employed as a Medical Representative. He was issued a charge-sheet on March 5, 1990. Thereafter another charge-sheet was issued to the respondent No. 2 on May 8, 1990. A departmental enquiry by the petitioner was conducted against the respondent No. 2. In the said enquiry the was found guilty of the charges and thereafter an order of dismissal dated October 31, 1990 was passed.

3. Respondent No. 2 submitted an application for conciliation under the provisions of the Industrial Disputes Act, 1947. On failure of the said conciliation proceedings the appropriate Government passed an order of reference for the adjudication of the industrial dispute by the respondent No. 1. The terms of the reference are as under:

Whether the dismissal of Shri Suresh Malik s/o Shri Yashpal Malik is legal and justified? If not, to what relief he is entitled to and what directions can be given to the employer in this regard?

4. Before the Labour Court, the petitioner and respondent No. 2, both filed their statements of claim. The respondent No. 2 employee challenged the legality and validity of the departmental enquiry conducted by the petitioner. Various grounds were raised by the respondent No. 2 to invalidate the departmental enquiry.

5. The Labour Court vide its interim order dated March 3, 1992 held that the departmental enquiry conducted against the respondent No. 2 employee was bad in law for the reasons recorded in the order dated March 3, 1992. After holding the enquiry as illegal, the Labour Court, thereafter permitted the petitioner to adduce the evidence to prove the charges.

6. The petitioner management examined one witness. They examined Shri L. J. Agarwal who was employed as Area Manager. He was Management's witness. The respondent No. 2 examined himself.

7. The Labour Court, thereafter, passed its impugned award dated November 7, 1996, which is Annexure P-l to the petition. By this award, the Labour Court directed for the reinstatement of respondent No. 2 with 50% of back wages. This award has been challenged by the petitioner in the present petition.

8. The respondent No. 2 has also filed a petition before this Court, which has been registered as W. P. No. 575/1997. This petition has been filed by the respondent No. 2 employee for the modification of the award by claiming 100% of back wages as the Labour Court directed for 50% of the back wages. Both the petitions were heard jointly.

9. After when the enquiry was declared illegal, the Labour Court in detail has discussed: the evidence of Shri L.J. Agarwal, who was employed as Area Manager and was the management's witness. The Labour Court while considering his statement came to the conclusion that the petitioner management has, failed to prove the charges as enumerated in both the charge-sheets. The Labour Court while arriving at a conclusion that no charges are proved against the petitioner, discussed, in detail the statement of Shri L.J. Agarwal. A finding of fact under the circumstances has been arrived at by the Labour Court after when the enquiry was declared illegal. The Labour Court came to the conclusion that none of the charges against the respondent. No. 2 employee are found proved, therefore, the Labour Court directed for the reinstatement of respondent No. 2 with 50% of back wages.

10. Before this Court, at the time of hearing, the petitioner was not represented, therefore, the record of the case is perused.

11. Management while filing the petition before this Court has raised a ground that reference under Section 10 of the Industrial Disputes Act, 1947 is bad and is illegal. This ground has been raised by the petitioner on the ground that the Deputy Labour Commissioner, Bhopal had no jurisdiction to make reference of the alleged dispute to the Labour Court No. 1, Bhopal.

12. It may be seen in the instant case that the respondent No. 1 shall have the jurisdiction. It is so because the misconduct which was alleged against the employee was related to the period when he was posted at Bhopal. The respondent No. 2 employee was also issued charge-sheet at Bhopal. A departmental enquiry against the respondent No. 2 employee was also conducted in Bhopal. The order of dismissal was served on the petitioner at Bhopal. Thus, while continuing the respondent No. 2 employee's posting at Bhopal, a disciplinary action against him was taken by the petitioner. Thus, the Deputy Labour Commissioner shall have the jurisdiction to pass the order of reference and accordingly the respondent No. 1 shall have the jurisdiction in this reference. The judgment of the Apex Court in Workmen of Shri Rangavilas Motors (P) Ltd. and another v. Shri Rangavilas Motors (P) Ltd. and Ors. : (1967)IILLJ12SC shall have the application. Thus, this ground is without any substance.

13. The next question which has been raised is that respondent No. 2 was not a workman within the meaning of the definition of the workman as defined in Section 2(s) of the Industrial Disputes Act, 1947. It may be seen that an objection before the Court below was raised that since the respondent No. 2 was employed as a Medical Representative, therefore, he is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.

14. With regard to meet out, the objections - the petitioner about the status of respondent No. 2, whether he would be a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, has to be dealt with. The Apex Court had an occasion to consider a similar question in a judgment H.R. Adyanthaya v. Sandoz (India) Ltd. and Ors. : (1995)ILLJ303SC . The Apex Court in the said case was considering the status of Medical Representatives and the Apex Court came to the conclusion that since there had been an amendment in the provisions of the Industrial Disputes Act, 1947 and also by virtue of the provisions of Section 6 of the Sales Promotion Employees (Conditions of Service) Act, 1976 makes application to the provisions of the Industrial Disputes Act, 1947 as in force for the time being, therefore, the Apex Court held that a Medical Representative shall be a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.

15. The aforesaid judgment passed by the Apex Court had also been considered by the Rajasthan High Court in Dolphin Laboratories Ltd. v. Judge, Labour Court, Udaipur and Anr. 2001-II-LLJ-559 (Raj) (sic)nd also by Punjab & Haryana High Court in Ripu Daman Bhanot v. Presiding Officer, Labour Court, Ludhiana and Ors. 1997-I-LLJ-557 (P&H;). The aforesaid two High Courts have also dealt with the similar questions and relying upon the ratio of Sandoz's case (supra) held that Medical Representative is a workman for the purpose of Section 2(s) of the Industrial Disputes Act, 1947.

16. In view of the aforesaid law laid down by the two High Courts based upon the earlier judgment passed by the Apex Court in Sandoz's case (supra), this objection of the petitioner also cannot be accepted.

17. So far as the other grounds, which the petitioner has raised are numbered as Ground No. 6.6, 6.9 and 6.10, are concerned, these grounds relate to the appreciation of the evidence by the Labour Court. Since the Labour Court on the basis of the material on record has recorded a finding that the charges as mentioned in both the charge-sheets are not found proved against the respondent No. 2 employee, therefore, this Court exercising its writ jurisdiction under Article 227 of the Constitution of India cannot re-appreciate the evidence. The Court exercising the jurisdiction under Article 227 of the Constitution of India has to look into that the Labour Court whether has acted within its jurisdiction and further has not acted contrary to law.

18. The matter with regard to the appreciation of evidence cannot be gone into unless the findings are so perverse as no reasonable man would arrive at a conclusion as arrived at by the subordinate Courts. The findings of fact recorded by the Labour Court on appreciation of evidence in the present case cannot be said to be the findings either perverse or not based upon any evidence on record. Therefore, these grounds as such also are without any substance.

19. Another question which the employer in the present petition has raised about the question of granting relief to the respondent No. 2 with back wages, deserves a consideration. The Apex Court in the recent development of law has laid down the guidelines for the grant of back wages. In accordance with the guidelines laid down by the Apex Court in its judgments the grant of 50% of back wages by the Labour Court has to be considered. The Apex Court had laid down that merely because the order of termination is set aside, the grant of back wages is not automatic.

20. In this reference, the judgment passed by the Apex Court, which is Hissar Central Co-op. Bank Ltd. v. Kali Ram : (2004)ILLJ232SC is relevant. The Apex Court has laid down a principle that if there had been the slightest evidence against an employee then the grant of full back wages would not be justified. Another judgment is also relevant in this regard, A.P.S.R. T.C. v. B. Vikram Reddy : (2003)11SCC570 . This case relates to the fact that the Labour Court can refuse to grant the back wages if there had been lack of diligence on the part of an employee.

21. If the ratio of this case is looked into and applied in the present case, it seems to be a case where the respondent No. 2 employee has been awarded reinstatement on a technical ground. The technical ground in his favour had been that the Management examined only one witness i.e. the Area Manager, Shri L.J. Agarwal. The Labour Court while recording a finding in the award dated November 7, 1996 came to a conclusion that it was necessary for the Management to examine the doctors who were said to have been transferred from the place where the respondent employee has shown to have visited them.

22. The defence of the respondent No. 2 employee before the Labour Court for the first time in relation to this charge-sheet was that the said doctors were not at all transferred. It may be seen that at the time when the charge-sheets dated March 5, 1990 and May 8, 1990 were, issued to the respondent No. 2 employee, he did not file reply to the said charge-sheets but continued to demand the documents, it was simple charge against the respondent No. 2 that he has submitted a false report showing his visit. to the particular doctor. Respondent employee' could have denied while filing the reply that he has visited the said doctors and the said doctors were not transferred but before the Labour Court, respondent employee succeeded on the. ground that the Management petitioner did not' examine the said two doctors. Thus, success of the respondent No. 2 was on a technical ground, though the charge as enumerated in the charge-sheet shows the conduct of the. respondent No. 2 employee as such was lack of diligence.

23. The counsel for the respondent employee submitted that the Apex Court in its judgment in M.L. Binjolkar v. State of M.P. : (2005)IIILLJ524SC directed that the quantum of back wages would depend upon several factors and the Court has to weigh pros and cons of each case and take a pragmatic view. The counsel for the petitioner also, submitted another judgment in General Manager, Haryana Roadways v. Rudhan Singh : (2005)IIILLJ4SC and argued that the benefit of back wages on reinstatement of an employee who was engaged on daily rate, basis shall be justified but in the present case respondent No. 2 was a permanent employee, therefore, the ratio of the said case shall not be applicable.

24. The counsel for the respondent: employee further submitted that in the present case, evidence was adduced on behalf of the respondent No. 2 employee when he entered into a witness box and gave a specific statement that he after his termination was not gainfully employed and on the basis of his statement, the respondent employee is entitled to full back wages.

25. Various judgments passed by the Apex Court lay down the guidelines and principles of grant of back wages. It may be seen that grant of back wages is not ipso facto. For setting aside the termination and directing for reinstatement various factors have to be considered in this regard. This Court in earlier paragraph of this judgment has already considered one of the circumstance wherein the lack of diligence including the slightest evidence against the respondent employee has been discussed.

26. Apart from the aforesaid, it may further be seen the conduct of the respondent employee after when this Court admitted the present petition on July 29, 1997. The Court while admitting the petition, directed the petitioner employer to comply with the provisions of Section 17B of the Industrial Disputes Act, 1947 i.e. to pay last wages drawn. The employer passed an order of reinstatement of respondent No. 2 rather than paying the last wages drawn. Before this Court, the counsel for the petitioner gave a statement on August 7, 1997 that the respondent employee had been reinstated in service. Subsequently, a grievance was made on behalf of the respondent before this Court that the order of reinstatement has not been passed for Bhopal and the order as such cannot be treated to be an order of reinstatement by which the respondent employee is given his posting elsewhere other than Bhopal.

27. This Court considered in detail the said submission of the employee by its order dated September 18, 1997 and came to the conclusion that the order of reinstatement has already been passed. Therefore, the employee must join his duties.

28. The learned Counsel for the respondent employee stated that after the order of reinstatement passed by the employer and even after the statement was given before this Court by the employer on August 7, 1997 in relation to reinstatement of respondent employee, he has not joined his services.

29. This Court when passed an order on September 18, 1997 by which the petition with regard to the posting of the respondent employee by the petitioner was considered to be a proper posting yet the respondent No. 2 did not go and join his place of posting in accordance with the order passed by the employer.

30. Keeping in view the aforesaid conduct and also the other reasons, it will not be proper to allow 50% of back wages but to reduce by 25% only to the respondent employee, therefore the award of reinstatement is upheld. Accordingly, the award as contained in Annexure P-1 to the petition, is modified to the extent that the respondent No. 2 employee would be entitled for reinstatement with 25% back wages only.

31. The petition is accordingly allowed partly.