Worker Beging Represented by President Krishnadeo Prasad Yadav Vs. Employer in Relation to the Management at Kusunda Area of Ms Bharat Coking Coal Limited - Court Judgment

SooperKanoon Citationsooperkanoon.com/65109
CourtJharkhand High Court
Decided OnSep-07-2015
AppellantWorker Beging Represented by President Krishnadeo Prasad Yadav
RespondentEmployer in Relation to the Management at Kusunda Area of Ms Bharat Coking Coal Limited
Excerpt:
1 in the high court of jharkhand at ranchi l.p.a. no. 303 of 2015 …... workman being represented by president krishnadeo prasad yadav son of late birbal prasad yadav, national colliery congress, water board colony, hari mandir road, hirapur, dhanbad, now national coal worker congress khass kusunda colliery branch, resident of bhuli nagar, block b. no.b/170, p.o. and p.s. bank more, district dhanbad. …. appellant -versus- employer in relation to the management at kusunda area of m/s bharat coking coal limited, p.o. kusunda, p.s. putkee, district dhanbad through sri anoop kumar sengupta, chief general manager kusunda area no.vi, b.c.c.l., kusunda, p.o. and p.s. putkee, dhanbad. …. respondent ….. coram : hon’ble mr.justice virender singh, chief justice hon’ble mr.justice p.p. bhatt … for the appellant : m/s p. modi & sarvendra kumar, advs. for the respondent : mr. anoop kumar mehta, advocate --- 05/dated 7th september, 2015 per virender singh,c.j.1. the instant letters patent appeal has been filed by a union known as national colliery congress on behalf of one workman namely lalchand gope (hereinafter to be referred as ‘workman’), a night guard posted in industry colliery against whom a criminal case under sections 379/411 i.p.c. was registered in february, 1994 on the allegation that he was caught stealing one piece of cable by a personnel of cisf. simultaneously, departmental proceedings were also initiated against him in which ultimately the disciplinary authority passed an order of dismissal from service on 2 nd of november, 1994. the workman got acquittal in a criminal case vide judgment dated 25 th of february, 1999 of judicial magistrate, dhanbad, copy thereof is available on the memo of appeal as annexure-1. thereafter, the union, on his behalf, raised an industrial dispute (reference no.280 of 2000) in which presiding 2 officer of the central government industrial tribunal no.i, dhanbad, considering the gravity of misconduct committed by the workman and keeping in view the proportionality of the punishment to be awarded to him, passed an award in the following terms :- “the action of the management of kusunda area of m/s bccl in dismissing sri lalchand gope from the services of the company w.e.f. 1/2.11.1994 is not justified. hence, the concerned workman is entitled to be reinstated in service with 60% back wages, but he will not be entitled for further increments and further promotion till the case of joining.”2. being aggrieved of the said award, management of kusunda area of m/s b.c.c.l. (for short 'employer') knocked at the door of the writ court through the medium of w.p.(l) no.6002 of 2009 which stands allowed by the learned writ court vide impugned order dated 28th of april, 2015. aggrieved of the said order of learned writ court, the workman has now filed the instant letters patent appeal, which is at admission stage. however, with the consent of learned counsel for both the sides, we have taken it on board for its final consideration.3. heard learned counsel for both the sides.4. learned counsel appearing for the workman, at the very outset, submitted that the observation made by the learned writ court to the effect that it was not open to tribunal to substitute its own opinion on the quantum of punishment looking at the gravity of the misconduct, is not sustainable in terms of section 11-a of the industrial disputes act (for short 'i.d. act'). he submitted that it is the statutory duty of the labour court under section 11-a of the i.d. act to adjudicate the dispute on merits on the basis of the evidence produced on record and that this act also empowers the adjudicating authority 3 to examine the aspect of proportionality of punishment to be imposed upon a workman, if the act of misconduct alleged against him is proved. he submitted that even the high court is also duty bound to exercise the same power while dealing with the award rendered by the labour court.5. in support of his contentions, learned counsel has relied upon the judgment of hon'ble supreme court in case raghubir singh vs. general manager, haryana roadways, hissar [reported in (2014) 10 supreme court cases 301] in which their lordships in para-36 has observed as follows :-“36. once the reference is made by the state government in exercise of its statutory power to the labour court for adjudication of the existing industrial dispute on the points of dispute, it is the mandatory statutory duty of the labour court under section 11-a of the act to adjudicate the dispute on merits on the basis of evidence produced on record. section 11-a was inserted in the act by parliament by amendment act 45 of 1971 (w.e.f. 15-12-1972) with the avowed object to examine the important aspect of proportionality of punishment imposed upon a workman if, the acts of misconduct alleged against the workman are proved. the “doctrine of proportionality” has been elaborately discussed by this court by interpreting the above provision in workmen v. firestone tyre & rubber co. of india (p) ltd. as under: (scc p. 829, paras 33-34)“33. the question is whether section 11-a has made any changes in the legal position mentioned above and if so, to what extent? the statement of objects and reasons cannot be taken into account for the purpose of interpreting the plain words of the section. but it gives an indication as to what the legislature wanted to achieve. at the time of introducing section 11-a in the act, the legislature must have been aware of the several principles laid down in the various decisions of this court referred to above. the object is stated to be that the tribunal should have power in cases, where necessary, to set aside the order of discharge or dismissal and direct 4 reinstatement or award any lesser punishment. the statement of objects and reasons has specifically referred to the limitations on the powers of an industrial tribunal, as laid down by this court in indian iron & steel co. ltd. v. workmen (air sc at p. 138).34. this will be a convenient stage to consider the contents of section 11-a. to invoke section 11-a, it is necessary that an industrial dispute of the type mentioned therein should have been referred to an industrial tribunal for adjudication. in the course of such adjudication, the tribunal has to be satisfied that the order of discharge or dismissal was not justified. if it comes to such a conclusion, the tribunal has to set aside the order and direct reinstatement of the workman on such terms as it thinks fit. the tribunal has also power to give any other relief to the workman including the imposing of a lesser punishment having due regard to the circumstances. the proviso casts a duty on the tribunal to rely only on the materials on record and prohibits it from taking any fresh evidence.”6. it would not be out of place to refer to para-38 of the judgment rendered in the case of raghubir singh (supra) which reads:-“38. having regard to the facts and circumstances of this case, we are of the view that it is important to discuss the rule of the “doctrine of proportionality” in ensuring preservation of the rights of the workman. the principle of “doctrine of proportionality” is a well recognised one to ensure that the action of the employer against employees/workmen does not impinge their fundamental and statutory rights. the abovesaid important doctrine has to be followed by the employer/employers at the time of taking disciplinary action against their employees/workmen to satisfy the principles of natural justice and safeguard the rights of employees/ workmen.”7. learned counsel for the workman submitted that he, without joining issues on other aspects of the matter, although he has a good case on merits as well, prays for remitting case to the learned writ court for adjudicating 5 upon the matter afresh on the anvil of section 11-a of i.d. act.8. mr. mehta, appearing for the respondent-employer, states that he has no objection, if the matter is remitted to the learned writ court for deciding it afresh within the ambit of section 11-a of the i.d. act. he, however, submits that it is a case in which the workman was caught red-handed committing theft and no punishment other than the dismissal may be appropriate.9. we, after hearing learned counsel for both the sides and without entering into the merits of the case on any aspect including the proportionality of the punishment to be imposed upon a workman, if the situation so arises depending upon the facts of the case, disturb the impugned order of the learned writ court, the matter being not decided on the touch-stone of section 11-a of i.d. act and remit the entire matter to the writ court for deciding it afresh in accordance with law.10. the appeal on hand, thus, stands allowed in the aforesaid terms.11. let the main matter be listed before the writ court as per the roster on 05.10.2015. (virender singh, c.j.) (p.p.bhatt, j.) shamim/lak
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 303 of 2015 …... Workman being represented by President Krishnadeo Prasad Yadav son of Late Birbal Prasad Yadav, National Colliery Congress, Water Board Colony, Hari Mandir Road, Hirapur, Dhanbad, now National Coal Worker Congress Khass Kusunda Colliery Branch, resident of Bhuli Nagar, Block B. No.B/170, P.O. and P.S. Bank More, District Dhanbad. …. Appellant -Versus- Employer in relation to the Management at Kusunda Area of M/s Bharat Coking Coal Limited, P.O. Kusunda, P.S. Putkee, District Dhanbad through Sri Anoop Kumar Sengupta, Chief General Manager Kusunda Area No.VI, B.C.C.L., Kusunda, P.O. and P.S. Putkee, Dhanbad. …. Respondent ….. CORAM : HON’BLE MR.JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON’BLE MR.JUSTICE P.P. BHATT … For the Appellant : M/s P. Modi & Sarvendra Kumar, Advs. For the Respondent : Mr. Anoop Kumar Mehta, Advocate --- 05/Dated 7th September, 2015 Per Virender Singh,C.J.

1. The instant letters patent appeal has been filed by a Union known as National Colliery Congress on behalf of one workman namely Lalchand Gope (hereinafter to be referred as ‘Workman’), a Night Guard posted in Industry Colliery against whom a criminal case under Sections 379/411 I.P.C. was registered in February, 1994 on the allegation that he was caught stealing one piece of cable by a personnel of CISF. Simultaneously, departmental proceedings were also initiated against him in which ultimately the disciplinary authority passed an order of dismissal from service on 2 nd of November, 1994. The workman got acquittal in a criminal case vide judgment dated 25 th of February, 1999 of Judicial Magistrate, Dhanbad, copy thereof is available on the memo of appeal as Annexure-1. Thereafter, the Union, on his behalf, raised an industrial dispute (Reference No.280 of 2000) in which Presiding 2 Officer of the Central Government Industrial Tribunal No.I, Dhanbad, considering the gravity of misconduct committed by the workman and keeping in view the proportionality of the punishment to be awarded to him, passed an award in the following terms :- “The action of the management of Kusunda Area of M/s BCCL in dismissing Sri Lalchand Gope from the services of the company w.e.f. 1/2.11.1994 is not justified. Hence, the concerned workman is entitled to be reinstated in service with 60% back wages, but he will not be entitled for further increments and further promotion till the case of joining.”

2. Being aggrieved of the said award, management of Kusunda Area of M/s B.C.C.L. (for short 'employer') knocked at the door of the Writ Court through the medium of W.P.(L) No.6002 of 2009 which stands allowed by the learned Writ Court vide impugned order dated 28th of April, 2015. Aggrieved of the said order of learned Writ Court, the workman has now filed the instant letters patent appeal, which is at admission stage. However, with the consent of learned counsel for both the sides, we have taken it on board for its final consideration.

3. Heard learned counsel for both the sides.

4. Learned counsel appearing for the workman, at the very outset, submitted that the observation made by the learned Writ Court to the effect that it was not open to Tribunal to substitute its own opinion on the quantum of punishment looking at the gravity of the misconduct, is not sustainable in terms of Section 11-A of the Industrial Disputes Act (for short 'I.D. Act'). He submitted that it is the statutory duty of the Labour Court under Section 11-A of the I.D. Act to adjudicate the dispute on merits on the basis of the evidence produced on record and that this Act also empowers the adjudicating authority 3 to examine the aspect of proportionality of punishment to be imposed upon a workman, if the act of misconduct alleged against him is proved. He submitted that even the High Court is also duty bound to exercise the same power while dealing with the award rendered by the Labour Court.

5. In support of his contentions, learned counsel has relied upon the judgment of Hon'ble Supreme Court in case Raghubir Singh vs. General Manager, Haryana Roadways, Hissar [reported in (2014) 10 Supreme Court Cases 301] in which their Lordships in para-36 has observed as follows :-

“36. Once the reference is made by the State Government in exercise of its statutory power to the Labour Court for adjudication of the existing industrial dispute on the points of dispute, it is the mandatory statutory duty of the Labour Court under Section 11-A of the Act to adjudicate the dispute on merits on the basis of evidence produced on record. Section 11-A was inserted in the Act by Parliament by Amendment Act 45 of 1971 (w.e.f. 15-12-1972) with the avowed object to examine the important aspect of proportionality of punishment imposed upon a workman if, the acts of misconduct alleged against the workman are proved. The “doctrine of proportionality” has been elaborately discussed by this Court by interpreting the above provision in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. as under: (SCC p. 829, paras 33-34)

“33. The question is whether Section 11-A has made any changes in the legal position mentioned above and if so, to what extent? The Statement of Objects and Reasons cannot be taken into account for the purpose of interpreting the plain words of the section. But it gives an indication as to what the legislature wanted to achieve. At the time of introducing Section 11-A in the Act, the legislature must have been aware of the several principles laid down in the various decisions of this Court referred to above. The object is stated to be that the Tribunal should have power in cases, where necessary, to set aside the order of discharge or dismissal and direct 4 reinstatement or award any lesser punishment. The Statement of Objects and Reasons has specifically referred to the limitations on the powers of an Industrial Tribunal, as laid down by this Court in Indian Iron & Steel Co. Ltd. v. Workmen (AIR SC at p. 138).

34. This will be a convenient stage to consider the contents of Section 11-A. To invoke Section 11-A, it is necessary that an industrial dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication. In the course of such adjudication, the Tribunal has to be satisfied that the order of discharge or dismissal was not justified. If it comes to such a conclusion, the Tribunal has to set aside the order and direct reinstatement of the workman on such terms as it thinks fit. The Tribunal has also power to give any other relief to the workman including the imposing of a lesser punishment having due regard to the circumstances. The proviso casts a duty on the Tribunal to rely only on the materials on record and prohibits it from taking any fresh evidence.”

6. It would not be out of place to refer to para-38 of the judgment rendered in the case of Raghubir Singh (supra) which reads:-

“38. Having regard to the facts and circumstances of this case, we are of the view that it is important to discuss the rule of the “Doctrine of Proportionality” in ensuring preservation of the rights of the workman. The principle of “Doctrine of Proportionality” is a well recognised one to ensure that the action of the employer against employees/workmen does not impinge their fundamental and statutory rights. The abovesaid important doctrine has to be followed by the employer/employers at the time of taking disciplinary action against their employees/workmen to satisfy the principles of natural justice and safeguard the rights of employees/ workmen.”

7. Learned counsel for the workman submitted that he, without joining issues on other aspects of the matter, although he has a good case on merits as well, prays for remitting case to the learned Writ Court for adjudicating 5 upon the matter afresh on the anvil of Section 11-A of I.D. Act.

8. Mr. Mehta, appearing for the respondent-employer, states that he has no objection, if the matter is remitted to the learned Writ Court for deciding it afresh within the ambit of Section 11-A of the I.D. Act. He, however, submits that it is a case in which the workman was caught red-handed committing theft and no punishment other than the dismissal may be appropriate.

9. We, after hearing learned counsel for both the sides and without entering into the merits of the case on any aspect including the proportionality of the punishment to be imposed upon a workman, if the situation so arises depending upon the facts of the case, disturb the impugned order of the learned Writ Court, the matter being not decided on the touch-stone of Section 11-A of I.D. Act and remit the entire matter to the Writ Court for deciding it afresh in accordance with law.

10. The appeal on hand, thus, stands allowed in the aforesaid terms.

11. Let the main matter be listed before the Writ Court as per the roster on 05.10.2015. (Virender Singh, C.J.) (P.P.Bhatt, J.) Shamim/LAK