Employers in Relation to the Management of Tetulmari Colliery Under Sijua Area of Bharat Coking Coal Ltd. Vs. the Presiding Officer, Central Government Industrial Tribunal No. 1. and ors. - Court Judgment

Excerpt:
labour and industrial-termination-section 11-a of industrial disputes act, 1947-compensatory appointment under land losers scheme obtained by deceit and fraud-dismissal from service-tribunal directing for reinstatement with full back wages-charges proved by enquiry report-if domestic enquiry is held to be proper and fair then jurisdiction of tribunal is restricted-tribunal wrongly recorded that there was no fraud or misrepresentation-tribunal went beyond scope of reference and traveled beyond its jurisdiction by deciding issue of title and right arising from sale deed-impugned award quashed- petition allowed. - constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - the land acquisition officer on being satisfied directed gulam rasul and others by issuing notice date 18.5.1984 to refund the amount of compensation. it has further been submitted that even otherwise the award passed by the tribunal suffers from error of facts, error of record as well as error of law and is liable to be quashed. he further submits that the reference order is perfectly legal and the subject matter was covered under section 2k of the industrial disputes act. it is well settled that in case if the domestic enquiry is held to be proper and fair then the jurisdiction of the tribunal is restricted. scope of section 11a has been explained by the hon'ble supreme court time and again in 2006 (13) scc 613, (2005)illj1135sc and (2005)iillj156sc and in a recent judgment reported in (2008)illj849sc .in all the aforesaid cases it has been conclusively held that the power under section 11a has to be exercised judiciously and interference is possible only when the tribunal is not satisfied with the findings and further concludes that punishment imposed by the management is highly disproportionate. it has further observed that the discretion which can be exercised under section 11a is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of another mitigating circumstances which require the reduction of the sentence or the past conduct of the workman which may persuade the labour court. further the learned industrial tribunal has erroneously recorded that the private respondent was given employment by virtue of agreement dated 20.5.1982 and there was no case of fraud or misrepresentation on his part whereas on perusal of the agreement it will be evident that the same has been entered into with the displaced person and the said plot is also included and it also accompanies a letter in the form of undertaking which clearly states that employment on piece rated job was given for alienating the under mentioned land in plot no. 3669 and 3672. this clearly proves the case of the management, the finding in the enquiry report and the order passed by the disciplinary authority about the fact of misrepresentation, deceit and fraud. the industrial tribunal has gone beyond the scope of reference and has travelled beyond its jurisdiction when it goes to decide the issue of title as well as the right arising from the sale deed and further erred in holding that there is no dispute regarding plot no.orderajit kumar sinha, j.1. in the instant writ petition the petitioner prays for issuance of an appropriate writ in the nature of certiorari or any other appropriate writ for quashing the award of the central government industrial tribunal no. 1, dhanbad dated 9.12.2003 in ref. no. 37/91 whereby and whereunder the said reference has been answered in favour of the concerned workman with a direction to reinstate the concerned workman with full back wages and all other consequential benefits. the petitioner further prays for quashing the office memorandum dated 22.11.1990 of the respondent no. 3 by reasons whereof the dispute although not being an industrial disputes was referred for adjudication to the industrial tribunal.2. the facts, in brief, are set out as under:a land acquisition case no. 88/1978-79 was initiated under the land acquisition act for acquisition of about 6.05 acres of land in plot no. 3669 and 3672 in village bauakalan. sri gulam rasul, iltaf, ramjan and maksuddin s/o rajan mian, manir mian s/o late janiyat mian, zamir mian and muta mian s/o late samir mian and habib mian s/o hiru mian applied for compensation and received the same from the office of district land acquisition officer. after receiving the compensation the villagers of village baukalan were not allowing the management to take possession of the lands and to construct coal handling plant. they were demanding employment in lieu of land no. 3 against 6.05 acres of land. being compelled the petitioner management entered into an agreement on 20.05.1982 and agreed to provide three employments to the land losers. accordingly gulam rasul and others nominated md. salimuddin for employment and he was accordingly given employment. since the compensation had been paid and the award was prepared in favour of the ancestors of md. salimuddin. the management bonafidely provided employment to md. salimuddin as a piece rate miner/loader. subsequently his services were regularized.3. it appears that one bhola nath pramanik made a representation on 19.6.1982 that the lands in plot no. 3669 belongs to him and also filed a protest petition before the land acquisition officer informing that the land had already been transferred to them and that gulam rasul and others had fraudulently received compensation in l.a. case no. 88/1978-79. he also produced documents to support the claim vide registered sale deed no. 2881 dated 17.3.1952 and informed that the heirs and successors were in peaceful possession of the plot. the land acquisition officer on being satisfied directed gulam rasul and others by issuing notice date 18.5.1984 to refund the amount of compensation. the said sri mahanand pramanik also prayed for a reference of the issue before the land acquisition judge and accordingly reference was made to the second subordinate judge, dhanbad who was also the land acquisition judge, dhanbad in l.a. reference no. 55 of 1982. the learned land acquisition judge vide its order dated 27.01.1984 held that plot no. 3669 was transferred by the guardians of the concerned workman md. salimuddin to the parents/guardians of mahanand pramanik and others and it also held that mahanand pramanik and others were entitled to receive compensation.4. the management petitioner, on coming to know of the fraud issued a charges sheet on 25.3.1987 to md. salimuddin and as per paragraph 17 (i) of the model standing order suspended him pending enquiry. he submitted his explanation on 4.4.1987 denying the charges. finally after affording full opportunity the enquiry officer gave a report holding the workman md. salimuddin guilty of the charges levelled against him and thereafter the disciplinary authority vide its order dated 01.6.1989 dismissed md. salimuddin from service.5. being aggrieved the workman raised an industrial dispute and vide its memorandum dated 22.11.1990 the following dispute was referred for adjudication:whether the action of the management of tetulmari colliery under sijua area of m/s b.c.c.l. in dismissing sri; mohd. salimuddin, piece rate trammer from the service vide their letter no. tko/f-90/1077/89 dated 30.5./1.6.89 is justified if not, to what relief the workman is entitled 6. the learned tribunal registered the same as reference case no. 37/91 and vide its impugned award dated 9.12.99 answered the reference in favour of the concerned workman with direction to reinstate him with full back wages and other consequential benefits. the aforesaid award is sought to be challenged in the present writ petition by the management.7. the main contention raised by the learned counsel for the petitioner is that the reference dated 22.11.1990 was void ab-initio and illegal since it was not an industrial dispute as contemplated under section 2(k) of the industrial disputes act. mr. annop kumar mehta, learned counsel appearing for the petitioner submits that the employment had been procured by deceit, theft, mis-representation and by practicing fraud under the land loser scheme in accordance with paragraph 17(i) of the model standing orders and thus the reference of the alleged industrial dispute was illegal and unjustified. it has further been submitted that even otherwise the award passed by the tribunal suffers from error of facts, error of record as well as error of law and is liable to be quashed. he further submits that once the enquiry against the delinquent was found to be fair and proper, then the tribunal was not justified nor clothed with the power to reappraise the evidence in the domestic enquiry. he has further submitted that any appointment procured by misrepresentation or fraud is a nullity right at the inception. he also refers section 11a of the industrial disputes act to support the contention that the power of the tribunal is limited and it cannot go into the correctness of the disciplinary proceedings and enquiry if the same was found to be fair and proper.8. the learned counsel for the respondents submits that the dismissal of the workman has to be treated as an industrial dispute since he had not obtained employment under land loser scheme, but instead as per the agreement entered into between the management and villagers. he further submits that the reference order is perfectly legal and the subject matter was covered under section 2k of the industrial disputes act.9. i have considered the rival submissions and the pleadings and the applicable case laws. it is well settled that in case if the domestic enquiry is held to be proper and fair then the jurisdiction of the tribunal is restricted.10. the issue pertaining to section 11a of the industrial disputes act restricts the power of the industrial tribunal. scope of section 11a has been explained by the hon'ble supreme court time and again in 2006 (13) scc 613, : (2005)illj1135sc and : (2005)iillj156sc and in a recent judgment reported in : (2008)illj849sc . in all the aforesaid cases it has been conclusively held that the power under section 11a has to be exercised judiciously and interference is possible only when the tribunal is not satisfied with the findings and further concludes that punishment imposed by the management is highly disproportionate.11. in the instant case even in the award at paragraph 3 it has been specifically recorded as under:the lawyer appearing on behalf of the workman has admitted that the domestic enquiry is fair and proper and therefore the only question lying for consideration is: (i) whether the finding of the enquiry officer is just, and(ii) whether the order of dismissal is appropriate to the alleged misconduct. 12. the hon'ble supreme court in : (2005)iillj156sc (m.p. electricity board v. jagdish chandra sharma) while interpreting section 11a of the industrial disputes act and the scope of judicial review held that the industrial courts will not sit in appeal over the decision of the employer unless there exist a statutory violation in this behalf. it also held that the industrial court must act within the four corners of the statute concerned and the jurisdiction vested with the labour court to interfere with the punishment was not to be exercised capriciously and arbitrarily and unless there is a shockingly disproportionate punishment, the industrial court should not exercise its discretion under section 11a of the industrial disputes act. it has further observed that the discretion which can be exercised under section 11a is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of another mitigating circumstances which require the reduction of the sentence or the past conduct of the workman which may persuade the labour court.13. there is another aspect which requires consideration and that is errors and erroneous findings given in the award. the learned presiding officer, industrial tribunal no. 1, dhanbad in its impugned order at paragraph 5 has recorded as under:there is nothing on record to show that in the said land acquisition case either the concerned workman or his father was a party.it will be evident on reading the order passed in the land acquisition reference case no. 55/82 dated 27.1.1984 that the father of the private respondent no. 2 was party to that proceeding. further the learned industrial tribunal has erroneously recorded that the private respondent was given employment by virtue of agreement dated 20.5.1982 and there was no case of fraud or misrepresentation on his part whereas on perusal of the agreement it will be evident that the same has been entered into with the displaced person and the said plot is also included and it also accompanies a letter in the form of undertaking which clearly states that employment on piece rated job was given for alienating the under mentioned land in plot no. 3669 and 3672. this clearly proves the case of the management, the finding in the enquiry report and the order passed by the disciplinary authority about the fact of misrepresentation, deceit and fraud.the industrial tribunal has gone beyond the scope of reference and has travelled beyond its jurisdiction when it goes to decide the issue of title as well as the right arising from the sale deed and further erred in holding that there is no dispute regarding plot no. 3672 which admittedly belongs to the forefathers of the concerned bhola nath praminik and a competent court having jurisdiction and upon contest has already decided the issue against respondent no. 2. it is further relevant to point out that the order passed in the land acquisition reference case no. 55/82 dated 27.1.1984 has attained finality since no appeal has been preferred against it.14. considering the aforesaid facts and circumstances of the case the impugned award dated 9.12.1999 passed by the central government industrial tribunal no. 1, dhanbad in ref. no. 37/91 is quashed and the writ petition is accordingly allowed with no order as to costs.

Judgment:
ORDER

Ajit Kumar Sinha, J.

1. In the instant writ petition the petitioner prays for issuance of an appropriate writ in the nature of Certiorari or any other appropriate writ for quashing the Award of the Central Government Industrial Tribunal No. 1, Dhanbad dated 9.12.2003 in Ref. No. 37/91 whereby and whereunder the said reference has been answered in favour of the concerned workman with a direction to reinstate the concerned workman with full back wages and all other consequential benefits. The petitioner further prays for quashing the Office memorandum dated 22.11.1990 of the respondent No. 3 by reasons whereof the dispute although not being an industrial disputes was referred for adjudication to the Industrial Tribunal.

2. The facts, in brief, are set out as under:

A Land Acquisition Case No. 88/1978-79 was initiated under the Land Acquisition Act for acquisition of about 6.05 acres of land in plot No. 3669 and 3672 in village Bauakalan. Sri Gulam Rasul, Iltaf, Ramjan and Maksuddin s/o Rajan Mian, Manir Mian s/o late Janiyat Mian, Zamir Mian and Muta Mian s/o late Samir Mian and Habib Mian s/o Hiru Mian applied for compensation and received the same from the Office of District Land Acquisition Officer. After receiving the compensation the villagers of village Baukalan were not allowing the Management to take possession of the lands and to construct Coal Handling Plant. They were demanding employment in lieu of land No. 3 against 6.05 acres of land. Being compelled the petitioner Management entered into an agreement on 20.05.1982 and agreed to provide three employments to the land losers. Accordingly Gulam Rasul and others nominated Md. Salimuddin for employment and he was accordingly given employment. Since the compensation had been paid and the award was prepared in favour of the ancestors of Md. Salimuddin. The Management bonafidely provided employment to Md. Salimuddin as a Piece Rate Miner/Loader. Subsequently his services were regularized.

3. It appears that one Bhola Nath Pramanik made a representation on 19.6.1982 that the lands in plot No. 3669 belongs to him and also filed a protest petition before the Land Acquisition Officer informing that the land had already been transferred to them and that Gulam Rasul and others had fraudulently received compensation in L.A. Case No. 88/1978-79. He also produced documents to support the claim vide registered sale deed No. 2881 dated 17.3.1952 and informed that the heirs and successors were in peaceful possession of the plot. The Land Acquisition Officer on being satisfied directed Gulam Rasul and others by issuing notice date 18.5.1984 to refund the amount of compensation. The said Sri Mahanand Pramanik also prayed for a reference of the issue before the Land Acquisition Judge and accordingly reference was made to the Second Subordinate Judge, Dhanbad who was also the Land Acquisition Judge, Dhanbad in L.A. reference No. 55 of 1982. The learned Land Acquisition Judge vide its order dated 27.01.1984 held that Plot No. 3669 was transferred by the guardians of the concerned workman Md. Salimuddin to the parents/guardians of Mahanand Pramanik and others and it also held that Mahanand Pramanik and others were entitled to receive compensation.

4. The Management petitioner, on coming to know of the fraud issued a charges sheet on 25.3.1987 to Md. Salimuddin and as per paragraph 17 (i) of the model standing order suspended him pending enquiry. He submitted his explanation on 4.4.1987 denying the charges. Finally after affording full opportunity the Enquiry Officer gave a report holding the workman Md. Salimuddin guilty of the charges levelled against him and thereafter the disciplinary authority vide its order dated 01.6.1989 dismissed Md. Salimuddin from service.

5. Being aggrieved the workman raised an industrial dispute and vide its memorandum dated 22.11.1990 the following dispute was referred for adjudication:

Whether the action of the management of Tetulmari colliery under Sijua area of M/s B.C.C.L. in dismissing Sri; Mohd. Salimuddin, piece rate Trammer from the service vide their letter No. TKO/F-90/1077/89 dated 30.5./1.6.89 is justified If not, to what relief the workman is entitled

6. The learned Tribunal registered the same as Reference Case No. 37/91 and vide its impugned award dated 9.12.99 answered the reference in favour of the concerned workman with direction to reinstate him with full back wages and other consequential benefits. The aforesaid award is sought to be challenged in the present Writ Petition by the management.

7. The main contention raised by the learned Counsel for the petitioner is that the reference dated 22.11.1990 was void ab-initio and illegal since it was not an industrial dispute as contemplated under Section 2(k) of the Industrial Disputes Act. Mr. Annop Kumar Mehta, learned Counsel appearing for the petitioner submits that the employment had been procured by deceit, theft, mis-representation and by practicing fraud under the land loser scheme in accordance with paragraph 17(i) of the Model Standing Orders and thus the reference of the alleged industrial dispute was illegal and unjustified. It has further been submitted that even otherwise the award passed by the Tribunal suffers from error of facts, error of record as well as error of law and is liable to be quashed. He further submits that once the enquiry against the delinquent was found to be fair and proper, then the Tribunal was not justified nor clothed with the power to reappraise the evidence in the domestic enquiry. He has further submitted that any appointment procured by misrepresentation or fraud is a nullity right at the inception. He also refers Section 11A of the Industrial Disputes Act to support the contention that the power of the Tribunal is limited and it cannot go into the correctness of the disciplinary proceedings and enquiry if the same was found to be fair and proper.

8. The learned Counsel for the respondents submits that the dismissal of the workman has to be treated as an industrial dispute since he had not obtained employment under land loser scheme, but instead as per the agreement entered into between the Management and villagers. He further submits that the reference order is perfectly legal and the subject matter was covered under Section 2k of the Industrial Disputes Act.

9. I have considered the rival submissions and the pleadings and the applicable case laws. It is well settled that in case if the domestic enquiry is held to be proper and fair then the jurisdiction of the Tribunal is restricted.

10. The issue pertaining to Section 11A of the Industrial Disputes Act restricts the power of the Industrial Tribunal. Scope of Section 11A has been explained by the Hon'ble Supreme Court time and again in 2006 (13) SCC 613, : (2005)ILLJ1135SC and : (2005)IILLJ156SC and in a recent judgment reported in : (2008)ILLJ849SC . In all the aforesaid cases it has been conclusively held that the power under Section 11A has to be exercised judiciously and interference is possible only when the Tribunal is not satisfied with the findings and further concludes that punishment imposed by the Management is highly disproportionate.

11. In the instant case even in the award at paragraph 3 it has been specifically recorded as under:

The lawyer appearing on behalf of the workman has admitted that the domestic enquiry is fair and proper and therefore the only question lying for consideration is:

(i) Whether the finding of the Enquiry Officer is just, and

(ii) Whether the order of dismissal is appropriate to the alleged misconduct.

12. The Hon'ble Supreme Court in : (2005)IILLJ156SC (M.P. Electricity Board v. Jagdish Chandra Sharma) while interpreting Section 11A of the Industrial Disputes Act and the scope of Judicial review held that the Industrial Courts will not sit in appeal over the decision of the employer unless there exist a statutory violation in this behalf. It also held that the Industrial Court must act within the four corners of the statute concerned and the jurisdiction vested with the Labour Court to interfere with the punishment was not to be exercised capriciously and arbitrarily and unless there is a shockingly disproportionate punishment, the Industrial Court should not exercise its discretion under Section 11A of the Industrial Disputes Act. It has further observed that the discretion which can be exercised under Section 11A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the Court, or the existence of another mitigating circumstances which require the reduction of the sentence or the past conduct of the workman which may persuade the Labour Court.

13. There is another aspect which requires consideration and that is errors and erroneous findings given in the award. The learned Presiding Officer, Industrial Tribunal No. 1, Dhanbad in its Impugned order at paragraph 5 has recorded as under:

There is nothing on record to show that in the said land acquisition case either the concerned workman or his father was a party.

It will be evident on reading the order passed in the land acquisition Reference Case No. 55/82 dated 27.1.1984 that the father of the private respondent No. 2 was party to that proceeding. Further the learned Industrial Tribunal has erroneously recorded that the private respondent was given employment by virtue of agreement dated 20.5.1982 and there was no case of fraud or misrepresentation on his part whereas on perusal of the agreement it will be evident that the same has been entered into with the displaced person and the said plot is also included and it also accompanies a letter in the form of undertaking which clearly states that employment on piece rated job was given for alienating the under mentioned land in plot No. 3669 and 3672. This clearly proves the case of the Management, the finding in the enquiry report and the order passed by the disciplinary authority about the fact of misrepresentation, deceit and fraud.

The Industrial Tribunal has gone beyond the scope of reference and has travelled beyond its jurisdiction when it goes to decide the issue of title as well as the right arising from the sale deed and further erred in holding that there is no dispute regarding plot No. 3672 which admittedly belongs to the forefathers of the concerned Bhola Nath Praminik and a competent Court having jurisdiction and upon contest has already decided the issue against respondent No. 2. It is further relevant to point out that the order passed in the land acquisition reference Case No. 55/82 dated 27.1.1984 has attained finality since no appeal has been preferred against it.

14. Considering the aforesaid facts and circumstances of the case the impugned award dated 9.12.1999 passed by the Central Government Industrial Tribunal No. 1, Dhanbad in Ref. No. 37/91 is quashed and the writ petition is accordingly allowed with no order as to costs.