RAMSINGH GYASI SINGH v. FACTORY MANAGER J C MILLS — 1980 DIGILAW 447 (MP)

JUDGMENT : ( 1. ) THIS order shall govern disposal of Misc. Petition No. 162 of 1979 (Factory Manager, Jiyajee Raw Cotton Mills, Limited and another v. Ram Singh and two others) as well. ( 2. ) THIS is a petition under Articles 226 and 227 of the Constitution of India for issuance of a suitable writ, Order or direction, directing respondent No. 1 to pay. back-wages to the petitioner which were withheld by labour Court No. 2, Gwalior, vide its order dated 31-5-1978 in case no. 101 /75 MPIR and also refused by the Member Judge, Industrial Court, vide order dated 6-4-1979, in case No. 399 /78 MPIR Revision. ( 3. ) THE facts of the case are that the petitioner was a permanent employee of the Weaving Department No. 2 B Shift, on Machine No. 89-90 in the factory of respondent No. 1 and he had been working for the last 25 years with sincerity and faithfulness. The petitioners services were clean and unblemished. The petitioner was arrested on the night of 13-5-1974 by the Police, Gwalior, on a complaint filed by some Marwari officer of the j. C. Mills. The Police did not put up the challan before the Magistrate for many days and when the petitioner moved an application before the Court, the petitioner was released on 25-5-1974 with instructions that the petitioner should find out his son against whom there were certain criminal charges. ( 4. ) ONE Mahavir Prasad, Marwari of the J. C. Mills has lodged a report with the Gwalior Police that the petitioners son Virendra Singh and one other employee Bajrang Singh abducted his daughter Anusuiya Bai. On that report, the Police put up a challan under section 366 of the Indian Penal code before the Third Additional Sessions Judge, Gwalior. The learned additional Sessions Judge, acquitted both the accused by his Judgment in case No. 83 of 1976. The petitioners son was falsely implicated in the above police case. The petitioner has nothing to do with the incident, because the petitioners son was a major and the petitioner could not be held responsible for the alleged illegal acts of his son. ( 5. ) ON account of the arrest of the petitioner, he could not attend his duty for more than ten days, and on the eleventh day, the petitioner reported to duty. ( 5. ) ON account of the arrest of the petitioner, he could not attend his duty for more than ten days, and on the eleventh day, the petitioner reported to duty. It is alleged by the petitioner that his wife submitted an application for leave to the authorities of respondent No. 1, but the leave was not sanctioned. Further, he has stated that one more leave application was sent through one of his neighbours, who was an employee of the J. G. Mills. But, even that application was not paid heed to and the leave was not sanctioned. The petitioner, then has made allegations that he approached the officers of the respondent Company, but his leave was not sanctioned. Therefore, he had to send his application by Registered Post, which he sent to the Factory manager on 27-5-1974. ( 6. ) THE petitioner, after having approached the respondent No. 1 under the provisions of section 31 (3) of the M. P. Industrial Relations Act, for taking him on duty and accepting the period for which he was absent as a period on leave for sufficient reason. But, his request was not accepted. Therefore, he presented an application before the Labour Court under sections 31 and 61 of the M. P. Industrial Relations Act. In the application presented before the Labour Court, he made a grievance that the respondent company is not taking him back on duty because certain Marwari officers are against him and as such, to punish the petitioner, his period of 10 days is not treated as the leave period and the Company is not taking him back in service. Further, he alleged in his application that the Company has, in the past, sanctioned leave retrospectively when the workers got themselves involved in criminal cases and they could not attend the work because of their arrests. ( 7. ) RESPONDENT No. 1 Company filed a written statement and supported the action taken by it, stating that the petitioner has abandoned his service of his own accord and, therefore, there is no question of taking him back in service. Before the Labour Court, the petitioner examined Dharam Singh, amar Singh, Hiralal, Ramjilal, Mangal Prasad and himself. Respondent no. 1 examined Deo Kumar Holani, S. M. Nigam, Parasram Pandey, maliram and Dayanand Jaju. ( 8. Before the Labour Court, the petitioner examined Dharam Singh, amar Singh, Hiralal, Ramjilal, Mangal Prasad and himself. Respondent no. 1 examined Deo Kumar Holani, S. M. Nigam, Parasram Pandey, maliram and Dayanand Jaju. ( 8. ) AFTER taking into consideration the documents produced by the petitioner and the respondent Company and the evidence recorded by both the parties the Labour Court, vide its order dated 31-5-1978, held that the action of the Management in not taking the petitioner on duty was illegal but the Labour Court declined to grant back-wages to the petitioner, by way of punishment for major misconduct. Against this order, both the petitioner and respondent No. 1 preferred revisions before the Industrial Court, Indore. The learned Member Judge of the Industrial Court dismissed both the revisions and maintained the order of the Labour Court and refused to award back-wages to the petitioner on the same ground. Against the order of the learned Member Judge of the Industrial Court, both the parties have presented these petitions. ( 9. ) ON behalf of the petitioner, it is submitted that if the petitioner is reinstated and that reinstatement is confirmed by the Industrial Court, then the petitioner is entitled to claim all his back-wages. In support of this submission, the learned counsel for the petitioner has relied on the following rulings. D. C. Roy v. Presiding Officer M. P. I. C. (1976 (32) FLR 285)), M js Bharat Sugar Mills ltd. v. Jai Singh (1961 (3) F L,r 371)and Gwalior Rayons, Mavoor v. Labour Court (1979 55 FLJ 34 ). ( 10. ) IN reply, the learned counsel for respondent No. 1 has submitted that concurrently, both the Courts have found that the petitioner is guilty of misconduct and if the petitioner is guilty of misconduct, then the order of reinstatement passed by the Labour Court and confirmed by the Industrial court is bad in law and, therefore, he wants me to hold that the order of reinstatement, being bad in law, it should be set aside. Further, he has submitted that if the order of reinstatement is bad in law, then, no question arises regarding the back-wages to be paid to the petitioner. ( 11. ) THE fact that the petitioner Ramsingh was arrested by Police is clear from Annexure P/1 which is dated 23-5-1974. Further, he has submitted that if the order of reinstatement is bad in law, then, no question arises regarding the back-wages to be paid to the petitioner. ( 11. ) THE fact that the petitioner Ramsingh was arrested by Police is clear from Annexure P/1 which is dated 23-5-1974. This is an application under section 437, Criminal Procedure Code filed by the petitioner before the chief Judicial Magistrate, Gwalior in Bundle File 1974. He has stated in his petition that Police Station, Gwalior has kept him in custody from 15-5-1974 merely on suspicion that he has committed some crime. He was not produced before the Magistrate when the period of 8 days has elapsed from the date of his arrest. He is working in J. C. Mills and as he is in Police custody, he cannot attend his duty and if released on bail, he will not abscond, neither he will interfere with the evidence to be produced on behalf of the prosecution. As such, he should be released on bail. The Judgment dated 8-9-1976, passed by the Third Additional Sessions Judge is Ex/p/2 in which Bajrang Singh son of Bhairon Singh and Virendra Singh son of Ram Singh were shown to be the accused persons. Virendra Singh is the son of Ramsingh the petitioner. The operative part of Judgment says that accused Bajrang Singh son of bhairon Singh and accused Virendra Singh son of Ram Singh were acquitted of the charge under section 366, Indian Penal Code. But, in my opinion, this judgment has no relevance to the case of the petitioner. But, it is admitted by both the parties that the petitioner was absent from his duty for more than ten days as he was in Police custody from 13-5-1974 to 25-5-1974, and this is a major misconduct under Standing Order No. 12 (1) (p ). Therefore, the only question which was raised before the Labour Court was whether this period could be condoned or not and whether there was any application by the petitioner for doing so. The Labour Court, after considering the evidence of both the parties, has come to the conclusion that the petitioner has not submitted any application to the concerned authority who could have held that the absence of the petitioner was bona fide. This matter was again agitated before the Industrial Court. The Labour Court, after considering the evidence of both the parties, has come to the conclusion that the petitioner has not submitted any application to the concerned authority who could have held that the absence of the petitioner was bona fide. This matter was again agitated before the Industrial Court. After considering the whole evidence, the Industrial Court has confirmed the finding given by the Labour Court. It has also confirmed the finding that the absence will amount to a major misconduct and the petitioner did not file any application to show that his absence was bona fide. In my opinion, the Labour Court and the Industrial court have confirmed these findings and they are purely findings of fact and nothing was shown to me to interfere in the matter under Article 226 of the constitution of India. ( 12. ) THE only grievance made before me was that if it was found by the Labour Court that the petitioner has committed misconduct, then the order of reinstatement made by the Labour Court and confllmed by the industrial Court, I should set aside and if I set aside the order of reinstatement, the natural consequence will be, as the learned counsel for. the respondent No. 1 has submitted before me, that the petitioner will not be entitled to any back-wages, but his services will also stand terminated. ( 13. ) IN reply, the learned counsel for the petitioner has submitted that the order of reinstatement is confirmed by the Industrial Court, which was passed by the Labour Court. Therefore, relying on the rulings mentioned in para 9 above, the petitioner will be entitled to back-wages as of right. What is the effect of reinstatement on back-wages of a worker was considered in detail in Hindustan Tin Works v. Its Employees (AIR 1979 S C 75 ). It has stated as under : "ordinarily, a worker whose service has been illegally terminated either by dismissal, discharge or retrenchment will be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. When the termination of services was found to be neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered services they would legitimately be entitled to the wage for the same. That is the normal rule. When the termination of services was found to be neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered services they would legitimately be entitled to the wage for the same. If the workers were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. " In D. C. Roys case (supra), the same principles are laid down. , They are as under: "we would, however, like to add that the decision in P. H. Kalyanis case is not to be construed as a charter for employers to dismiss employees after the pretence of an inquiry. The inquiry in the instant case does not suffer from defects so serious or fundamental as to make it non- est. On an appropriate action, it may become necessary to carve an exception to the ratio of Kalyanis case so as to exclude from its operation at least that class of cases in which under the facade of a domestic inquiry, the employer passes an order gravely detrimental to the employees interest like an order of dismissal. An inquiry blatantly and consciously violating principles of natural justice may well be equated with the total absence of an inquiry so as to exclude the application of the relation-back doctrine. " ( 14. ) BUT, in my opinion, the question to be decided in this petition is that when the Courts below have found that the petitioner has committed major misconduct, whether the Courts below were right in imposing the penalty of not awarding back-wages to the petitioner is justified or not. The punishment for major misconduct may be as provided under the Madhya pradesh Industrial Employment (Standing Orders) Rules, 1963. That is censure, fine, suspension, withholding of increment for a period of one year or demotion or dismissal. Further, it has stated: in awarding the punishment the manager shall take into account the gravity of the misconduct, the previous record of the employee, if any, and any other extenuating or aggravating circumstances. The Labour Court has taken into consideration all these aspects and has imposed the penalty of non-payment of back-wages. Further, it has stated: in awarding the punishment the manager shall take into account the gravity of the misconduct, the previous record of the employee, if any, and any other extenuating or aggravating circumstances. The Labour Court has taken into consideration all these aspects and has imposed the penalty of non-payment of back-wages. The punishment awarded by the Labour Court is confirmed by the Industrial court and it has added one more ground for not awarding the back-wages to the petitioner. The ground so added is that the petitioner has levelled against the officers of the management certain charges, which will affect the discipline amongst the workers. Therefore, in my opinion, it is not a pure case of setting aside the larder refusing permission to the petitioner to join his duties. Therefore, in my opinion, the order passed by the Labour Court and confirmed by the Industrial Court that the petitioner should be reinstated, taking into consideration all the factors of the case, requires no interference. ( 15. ) THE next point will be whether the petitioner will be entitled to back-wages or not. Looking to the major misconduct of the petitioner, the courts below have considered that he will not be entitled for back-wages. Even applying the principles laid down in the case mentioned above, it is discretionary matter whether to allow back-wages or not to the petitioner, looking to the misconduct of which he is charged. In using the discretion, i do not find any illegality on the part of the Labour Court or that of the industrial Court. Instead of dispensing with the services of the petitioner, he was deprived of his back-wages as a punishment, which the Labour Court is competent to do. Even the Industrial Court came to the conclusion that the discretion used by the Labour Court is judicious. Nothing was shown to take a different view of the discretion used by the Labour Court and confirmed by the Industrial Court in not awarding the petitioner the back-wages when he was found guilty of (major) misconduct. ( 16. Even the Industrial Court came to the conclusion that the discretion used by the Labour Court is judicious. Nothing was shown to take a different view of the discretion used by the Labour Court and confirmed by the Industrial Court in not awarding the petitioner the back-wages when he was found guilty of (major) misconduct. ( 16. ) IT was faintly submitted before me by the learned counsel for the petitioner that there is a discrimination between the petitioner and the other workers who were taken in service even though they were also absent from duty for more than ten days and as this action of the Company violates article 14 of the Constitution, the order of not awarding the back-wages to the petitioner should be held to be bad in law and the discretion used by the courts below should be set aside. In my opinion, this is a fallacious argument. In imposition of penalty, when the Court finds a person guilty so many factors play their role. For example, his age, his social status, his previous record, number of his dependents etc. In State of Kerala v. Kumari T. P. Roshana and another (1979 1 SC 572), it is held as under: "it is trite law that every inconsequential differentiation between two things does not constitute the vice of discrimination, if law clubs them together ignoring venial variances. Article 14 is not a voodoo which visits with invalidation every executive or legislative fusion of things or categories where there are no pronounced inequalities. Mathematical equality is not the touchstone of constitutionality. The vagarious element in marking and moderation of marks may be a fact of life, but too marginal to qualify for substantial difference unless otherwise made out. Indeed, there may be differences among the colleges under the same University, among the examiners in the same University. Such fleeting factors or ephemeral differences cannot be the solid foundation for a substantial differentiation which is necessary pre-condition for quashing. an executive or legislative act as too discriminatory to satisfy the egalitarian essence of Article 14. " This is the complete answer to the contention raised by the learned counsel for the petitioner. Therefore, it cannot be said that the discretion should be used in a particular manner only. an executive or legislative act as too discriminatory to satisfy the egalitarian essence of Article 14. " This is the complete answer to the contention raised by the learned counsel for the petitioner. Therefore, it cannot be said that the discretion should be used in a particular manner only. Therefore, the submission made by the learned counsel for the petitioner cannot be accepted and there is no violation of article 14 of the Constitution of India. ( 17. ) THE result, therefore, is that both the petitions fail and are dismissed. The order of the Labour Court, which is confirmed by the Industrial Court is hereby maintained. No order as to costs. Outstanding amount of security be refunded to the petitioner. Petitions dismissed.