C.W.P. No.1177 of 1988 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No.1177 of 1988
Date of Decision:15.09.2008
M/s Punjab Khand Udyog Limited
.....Petitioner
Vs.
The Presiding Officer, Labour Court, Gurdaspur and another
.....Respondents
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Rahul Sharma, Advocate for the petitioner.
Mr. Ashwani Prashar, Advocate for respondent No.2.
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HARBANS LAL, J.
This petition has been moved by M/s Punjab Khand Udyog
Limited, Chandigarh under Articles 226 and 227 of the Constitution of India
for quashing the impugned award dated 22.11.1987 (Annexure P.3).
The brief facts giving rise to this petition are that Sewa Singh-
respondent- workman had joined as Cane Clerk with effect from 1.11.1980
at monthly wages of Rs.700/-. He was charge-sheeted on the grounds that
(a) he allotted token Nos.80 and 81 and permanent serial No.34690 and
34691 on parchi No.024570 without any vehicle entering the cane yard; (b)
on his own, he allowed in writing two rehris on trolley slip (that too,
without rehris being there) and thus he exceeded the authority vested in
him; (c) he verified the variety and also forged the signature of Yard
Supervisor; and (d) the trolley parchi No.024570 was of date 18.4.1983 and
he accepted the parchi on 24.5.1983 without change of date from authorised
officer. The inquiry was conducted and full opportunity was afforded to
him. He was found guilty of charges (a) and (d) and was exonerated of
charges (b) and (c). As the charges found against him were of serious
nature, vide order dated 25.8.1984, his services were terminated. He raised
C.W.P. No.1177 of 1988 -2-
a dispute before the State Government under Section 10(1)(c) of the
Industrial Disputes Act, 1947 (for brevity, `the Act’), on the basis of which a
reference was made to the Labour Court, Gurdaspur as to find out whether
the termination of his services was justified and in order. He submitted his
claim before the Labour Court. The following issues were framed by the
learned Presiding Officer of the Labour Court:-
(i) Whether a fair and proper domestic inquiry was held
against the workman?
(ii) If issue No.1 is not proved, whether termination of
services of the workman is justified and in order?
(iii) Relief.
After hearing the learned representatives of the parties and
examining the evidence on record, the learned Presiding Officer, Labour
Court, Gurdaspur in exercise of the power under Section 11A of the Act, set
aside the order of termination of his services and directed that his six
increments be stopped with cumulative and future effect and he be
reinstated with continuity of service and full back-wages. Feeling aggrieved
therewith, the petitioner has preferred this petition.
The workman filed the written statement inter-alia pleading that
the Model Standing Orders are applicable to the petitioner- Company by
virtue of the provisions of Section 12-A of the Industrial Employment
(Standing Orders) Act, 1946 as the petitioner- Company had not adopted/
framed the certified Standing Orders. Thus, the whole inquiry proceedings
are without jurisdiction. The charge-sheet was issued with a malafide
intention and the charges were concocted against the answering respondent
as the charge-sheet dated 21/23.5.1983 contains charges for an event which
C.W.P. No.1177 of 1988 -3-
was yet to happen. The inquiry has not been conducted in accordance with
law and the workman was denied reasonable opportunity to defend himself.
Lastly, it has been prayed that this petition may be dismissed.
I have heard the learned counsel for the parties besides
perusing the findings returned by the learned Presiding Officer of the
Labour Court with due care and circumspection.
Mr. Rahul Sharma, Advocate appearing on behalf of the
petitioner has strenuously urged that the learned Labour Court after holding
the inquiry to be fair and proper and finding it not to be perverse in any
manner ordered reinstatement of the workman with continuity of service
and full back-wages in exercise of powers under Section 11A of the Act.
This award as far as relates to reinstatement of workman with continuity of
service is illegal, arbitrary and unconstitutional being against the well-
settled principles of law. The power under Section 11A of the Act can be
exercised only if there is a want of good faith, victimization, unfair labour
practices etc., on the part of the Management but once it was proved that
none of these existed, no reinstatement could have been ordered. The
learned Labour Court has not noticed the fact that the charges against the
workman are of serious nature involving dishonesty in connection with
employee’s business and thus order of termination of the workman was fully
justified. As ruled by the Supreme Court, dishonesty constitute a major
misconduct which justifies the order of dismissal of an employee.
To tide over these contentions, Mr. Ashwani Prashar, Advocate
appearing on behalf of the workman- respondent contended that the
respondent- workman has been reinstated and he is going to retire in April,
2009. He further pressed into service that the punishment inflicted upon the
C.W.P. No.1177 of 1988 -4-
workman- respondent being disproportionate to his alleged guilt, his
termination order has been rightly set aside by invoking the provisions of
Section 11A of the Act by the Labour Court. It is further argued that the
Labour Court has unlawfully imposed the punishment of stoppage of six
increments with cumulative effect of the respondent- workman.
Consequently, this part of the award is liable to be reversed.
I have given a deep and thoughtful consideration to the rival
contentions.
The learned Labour Court has observed that “the perusal of the
inquiry file would show that Mr. R.D. Sharma had conducted the inquiry
fairly and impartially. It would appear that the workman never made any
written request to the effect that assistance of a co-workman has not been
provided to him. There was no reason to hold that the workman was not
aware of his right to take the assistance of a co-worker. If the workman had
not been afforded full opportunity or if the Inquiry Officer was not acting
fairly towards him then he would have stated so in the reply dated 6.3.1984
submitted to the show cause notice. The charges (a) and (d) proved against
the workman are of a serious nature. He not only issued token numbers but
also unauthorisedly allowed rehris on the requisition slip without change of
date from the officer concerned. However, it is to be noted that the Cane
grower in whose name the requisition slip was issued had not approached
the respondent for payment of the price of sugarcane in question. Thus,
gravity of the misconduct committed by the workman is lessened.” There
does not seem to be any plausible reason to interfere with these
observations. The learned Labour Court has rightly held that the extreme
penalty of termination of services was not justified. The punishment being
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not in proportion to the guilt of the workman, the learned Labour Court had
rightly directed the petitioner to reinstate the workman with continuity of
service. The most crucial question to be determined herein as to whether
the workman could be allowed full back-wages particularly, when the
inquiry was found to be fair and proper and the charges (a) and (d) were
fully established against him. In re: Rajinder Singh R. v. Depot Manager,
Andhra Pradesh State Road Transport Corporation, 2000(3) Service
Cases Today 1, the Apex Court held that the appellant would be entitled to
continuity of service but not back-wages. In re: U.P.S.R.T.C. v. Mitthu
Singh, 2006(4) Recent Services Judgments 489, the Apex Court ruled that
the entitlement of a workman to get reinstatement does not necessarily
result in payment of back-wages, which would be independent of
reinstatement. While dealing with the prayer of back-wages, the factual
scenario and the principle of justice, equity and good conscience has to be
kept in view by the appropriate Court/ Tribunal. Here in this case, the
workman had put in about 3-3/4 years’ service. In re: General Manager,
Haryana Roadways v. Rudhan Singh, (2005) 5 Supreme Court Cases 591,
the Apex Court held that “there is no rule of law that in each and every case,
where a finding is recorded by the Court or Tribunal that the order of
termination of service was illegal, an employee is entitled to full back-
wages. A host of factors must be taken into account. One of the important
factors, which has to be taken into consideration, is the length of service,
which the workman had rendered with the employer. If the workman has
rendered a considerable period of service and his services are wrongfully
terminated, he may be awarded full or partial back-wages keeping in view
the fact that at his age and the qualification possessed by him, he may not be
C.W.P. No.1177 of 1988 -6-
in a position to get another employment. However, where the total length of
service rendered by a workman is very small, the award of back-wages for
the complete period, i.e., from the date of termination till the date of the
award, which our experience shows is often quite large, would be wholly
inappropriate.” In the case at hand, the workman has not put much service.
As noted supra, he was found guilty qua charges (a) and (d). As its
corollary, he is held disentitled to get back-wages. In re: U.P. SRTC v.
Mahendra Nath Tiwari and another, (2006) 1 Supreme Court Cases 118,
the Apex Court held that “we have no hesitation in coming to the conclusion
that the respondent did not deserve the award of back-wages to him. In fact,
he must consider himself lucky to have been reinstated and that we are not
interfering with that reinstatement.” In the present case, if the order
regarding reinstatement with continuity of service is set aside the family of
the workman will starve particularly when he is going to retire in April,
2009 and he won’t be able to refund the wages disbursed to him till today.
In view of the charges established against him, the Labour Court did not act
in a right perspective to allow the full back-wages to the respondent-
workman.
As a sequel of the above discussion, the only part of the award
vide which full back-wages have been allowed is hereby set aside in the
exercise of the writ jurisdiction under Articles 226/227 of the Constitution
of India.
Disposed of accordingly.
September 15, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No