Colliery Mazdoor Sabha Vs. Manager, Ramnagar Colliery and ors. - Court Judgment

Excerpt:
- amitava lala, j. 1. this writ petition has been made by the colliery mazdoor sabha making the manager of the concerned colliery and central government industrial tribunal as party respondents. although the order of reference which has been raised by the government of india is questioned, but such government was not party respondent herein. the writ petition has been supported by an affidavit filed by the president of the union as he was acquainted with the facts as derived from the record and competent to swear such affidavit.2. by making this writ petition, in effect, the petitioner wanted to establish that the workmen are entitled to get lesser punishment than the order of dismissal which has been passed in the facts and circumstances of this case. therefore, the punishment which has been affirmed by the tribunal in the award is disproportionate. accordingly, the writ court can direct the tribunal to review the facts and circumstances of this case.3. according to the learned counsel appearing for the petitioner, dispute under the reference should have been disposed of within the time specified under the order of reference as per section 10(2a) of the industrial disputes act, 1947. therefore, the extraordinary delay in passing the award caused a tremendous suffering to the workmen which tantamounts to receiving the punishment before the finalisation. therefore, they are entitled to sympathetic consideration from this court to the extent of referring the matter back to the industrial tribunal to review the quantum of punishment.4. so far the period fixed under section 10(2a) of the act is concerned, i have called upon the petitioner whether a copy of the order of reference has been annexed or not when it was answered that it is lying in the tribunal and the same has not been annexed. further, the learned counsel also contended that due to overload in the tribunal are taking much longer time in matters, which is well-known reason, that is why it has not taken any such point. thereafter he has not raised any such point. in such case no answer is necessary to be given.5. so far as the question of making union of india as party respondent, it is obviously fateful. the union of india and/or its appropriate authority who made the order of reference is the necessary party respondent in the case.6. so far the punishment part is concerned, the tribunal relied very much on a supreme court judgment reported in 2000(1) llj 424 (mahendra nissan allwyns ltd. v. m.p. siddappa and anr.) whereunder i find that in a situation when workman led the workmen from the factory premises and entered into the administrative office and the room of the deputy general manager and abused and threatened him and did not behave properly with the executives of the company, the supreme court held no lenient view should be taken against such workman.7. i put a question to the petitioner to say whether the case of the petitioner is lesser in measure comparing with the supreme court case as above or not. he answered by saying that had it been disposed of earlier, the referable judgment would not be available for the purpose of drawing an inference, such submission is so absurd. i do not want to make any further comment on it. however, i have gone through the award and i find that the assistant general manager was assaulted by two workmen. according to me, the ratio of the charge of assault to the superior officer is much higher than the case which has been referred by the tribunal and therefore, any distinguishing feature cannot be drawn to come out from the applicability of the ratio of such supreme court judgment. the judgment of the tribunal is so clear and meticulous that the same should not be interfered with. the-subject-matter of drawing an inference is evidence of two workmen witnesses against the workman. the tribunal held that had there been an evidence of supervisory staff to support other supervisory staff or some nexus and connection with the supervisory staff, the case would have been different. but when there is no, such case and as and when the workmen supported the facts and circumstances of assault of the managerial staff as well as not using of any abusive language by such managerial staff, there is no scope of sympathetic consideration in awarding lesser punishment.8. according to me, the scope of the writ court in such situation is very limited unlike an appeal court. there is no scope of judging the award based on materials. although the writ court would have taken a different stand altogether in awarding punishment, but when the same is based on factual materials including the question of sympathetic consideration, there is no scope open for the writ court to send the matter back to the tribunal for reviewing the situation.9. it is a question of peace and harmony of an industry. such peace and harmony has to be adjudged on the factual aspect of the matter and other balancing factors by the tribunal who is entrusted to investigate the factual aspect available therein.10. the learned counsel appearing for the respondent contended before this court that the workmen appeared before the tribunal are not the petitioners before the writ court. therefore, whether such petitioners, before the tribunal, accepted the punishment or not is not known. in case of awarding the individual punishment, union cannot take a different stand in the writ court for the first time. union never appeared and made any submission before the tribunal. therefore, writ petition on their behalf cannot be maintainable.11. apart from that, the petitioners being the workmen are piece-rated workers and their earning are dependent on their work performance and output. therefore, such piece-rated workers cannot be construed as permanent employees of the indian iron & steel company. the learned counsel further contended that one other factual aspect is similar to the supreme court case that these two workmen were leading the members of the union at the material time and one of them happened to be the assistant secretary of the concerned branch of the union.12. the learned counsel appearing for the petitioner relied upon a judgment reported in : (1989)illj71sc (scooter india limited, lucknow v. labour court, lucknow and ors.) whereunder i find that the labour court has taken the view that justice has been tempered with mercy and that the erring workman should be given an opportunity to reform himself and prove to be a loyal and disciplined employee. there the supreme court found that it cannot, therefore, be said that merely because the labour court had found the enquiry to be fair and lawful and the findings not to be vitiated in any manner, it ought not to have interfered with the order of termination of service passed against the respondent.13. according to me, this is not a situation which has been reflected in that judgment. here the tribunal has already tested the question of giving lesser punishment which is the true import of the supreme court judgment. moreover, as per the latest supreme court judgment, this court tested that the charge is not lesser than the charge reflected from the supreme court judgment referred thereunder by the tribunal. therefore, there is no wrong has been committed by the tribunal in passing such order.14. thus, taking into consideration the totality of the matter, i am of the view that the writ petition cannot be allowed. therefore, the writ petition stands dismissed.15. there will be no order as to costs.