Doman Singh Verma v. State Industrial Court — 1997 DIGILAW 171 (MP)

ORDER 1. By this writ petition filed under Art. 227 of the Constitution of India, petitioner (hereinafter referred to as the employee) seeks quashing of the order dated 22.2.1995 passed by the Industrial Court in appeal, whereby after setting aside the order of the Labour Court of reinstatement and payment of backwages, remitted the matter back to him for giving opportunity to the employer as also the employee to adduce evidence on the question of misconduct. 2. Shorn of unnecessary details, facts giving rise to the present writ petition are that the employee filed an application under Sec. 31 (3) of the M.P. Industrial Relations Act making a grievance, that without any domestic inquiry and without any order, his service has been terminated with effect from 1.10.88. According to the employee he was appointed in Bhilai Steel Plant (hereinafter referred to as the employer) as NMR Mazdoor on 28.9.87 and was getting Rs..18.70/- per day as wage. According to him he worked upto 30th September. 1988 and he was orally told that he shall not be taken on job from 1.10.88 but no order terminating his service was passed. 3. The stand of the employer before the Labour Court was that the employee gave an affidavit that no member of his family is in the employment of Bhilai Steel Plant but on investigation it was found that the said declaration of employee was false. It has been stated that the employee's father is in the employment since 1960 and still working. It is further stated that his uncle Chabbilal was also employed since 1.10.1975 and also presently working. It• is stated that the petitioner was given employment on nominal Mustor Roll at the rate of Rs. 18.70 per day on priority basis as BPL Candidate. It is stated that the petitioner secured employment by giving false declaration by decoitful means. Further stand of the employer was that as the employee was engaged on daily wages, there was no necessity to issue any order of termination and he was discontinued from service on 1.10.88. It is specific stand of the employer that the service of the employee was discontinued on account of misconduct. The employer took the stand that as the employee was a daily rated employee there was no necessity to issue charge sheet or hold any inquiry or issue any termination order in writing for discontinuance. It is specific stand of the employer that the service of the employee was discontinued on account of misconduct. The employer took the stand that as the employee was a daily rated employee there was no necessity to issue charge sheet or hold any inquiry or issue any termination order in writing for discontinuance. In sum and substance the stand of the employer is that the employee was a daily rated employee, his service was terminated on account of misconduct and as he was a daily rated employee there was no necessity to hold any inquiry or issue order of termination for discontinuance of his service. 4. The Labour Court on analysis held that in the absence of inquiry regarding the alleged misconduct of the employee, order of termination is bad. The Labour Court further found that as the employer has not issued any order of termination, it cannot be allowed to adduce evidence in the Labour Court to prove the misconduct. Accordingly, the Labour Court held that the termination of service of the employee is bad in law and consequently directed for his reinstatement in service with full backwages. 5. Aggrieved by the aforesaid order, the employer preferred an appeal under section 65 of the M.P. Industrial Relations Act, 1960. The Industrial Court as stated earlier by its order dt. 22.5.95, passed in appeal, set aside the order of the Labour Court and remitted the matter back before it. While doing so, the Industrial Court held that in view of the specific stand of the employer that the service of the employee was terminated on account of misconduct, it had the right to prove the misconduct by adducing evidence before the Labour Court. If further negatived the stand of the employee that the appeal is incompetent. It is this order of the Industrial Court which is being impugned by the employee in the present writ petition filed under Art. 227 of the Constitution of India. 6. Shri R.K. Gupta, appearing in support of the writ petition submits that in view of the contradictory stand of the employer and in the absence of any order of termination, the appellate Court has committed an error of law in remanding the case to the Labour Court and permitting the employer to adduce evidence on the point of misconduct. 6. Shri R.K. Gupta, appearing in support of the writ petition submits that in view of the contradictory stand of the employer and in the absence of any order of termination, the appellate Court has committed an error of law in remanding the case to the Labour Court and permitting the employer to adduce evidence on the point of misconduct. According to the learned counsel at one stage the employer has taken the stand that no order of termination was necessary and on the other hand taking the stand that the service was terminated on account of misconduct as also their stand that the employee being a daily rated employee there was no necessity to issue charge sheet or held an inquiry, are contradictory and therefore the employee can't be permitted to adduce evidence to prove misconduct. I do not find any substance in this submission of the learned counsel for the petitioner. 7. The first stand of the employer is that the employee being a daily rated employee, no order of termination is required to be passed or domestic inquiry is required to be held. However, it is the specific stand of the employer that the service of the employee was terminated on the ground of misconduct. These are, in my opinion, alternative pleas and cannot be said to be contradictory. Accordingly I negative this submission of the learned counsel for the petitioner. 8. Shri Gupta, then contends that as no written order of termination was passed, the employer cannot be permitted to adduce evidence in support of the alleged misconduct. In support of the aforesaid submission, learned counsel has placed reliance on a Division Bench Judgment of the Patna High Court in the case of State Bank of India v. Union of India and others 1989 (2) LLJ 294 and my attention has been drawn to the following paragraph which reads as follows:- "In view of aforesaid pronouncement there should not be any difficulty in accepting the contention raised on behalf of the petitioner that the Tribunal should have considered and appraised the evidence adduced 00 behalf of the petitioner regarding the misconduct of the respondent, and should have recorded a finding whether the alleged misconduct had been proved or not, instead of saying that as there had been non compliance of Sec. 25 of the Act the termination was invalid in eye of law. But the difficulty in present case is that the bank at no stage claimed to have dismissed or discharged the respondent. I have already pointed out that there is no written order either of dismissal, discharge or termination in respect of the respondent. As such, the question, which has to be answered is as to whether the right of management to lead evidence before the Tribunal justifying an order of dismissal or discharge in connection with any misconduct of a workman, can be exercised even in a case where there is no order of dismissal, discharge or termination. No case was brought to our notice in support of the stand of the petitioner that the power under Sec. 11-A can be exercised even in cases where the management never claimed to have dismissed or discharged the workman in question. If the bank had issued even an order of termination simplicitor it could have justified its action before the Tribunal by adducing evidence that in fact it was an order of dismissal on the ground of misconduct committed by the respondent.', . (underlining mine). 9. Mr. G .M. Chaphekar appearing on behalf of the employer submits that in the present case the employer has taken a stand that the service of the employee was although terminated on the ground of misconduct, no domestic inquiry was necessary nor the same was held, but nonetheless in view of the specific stand of the employer that his service has been terminated on account of misconduct, it has the right to adduce evidence to prove the same. In support of the aforesaid submission learned counsel has placed reliance on the Division Bench judgment of this Court in the case of Employers in relation to M/s. Anand Cinema, Jabalpur v. Mohan Tiwari and another ( 1992 JLJ 461 = 1992 MPLJ 334 ) and my attention has been drawn to the following paragraph, which reads as under :- "The contention raised on behalf of the employees, therefore, cannot be accepted that only such a disciplinary action is excluded from the purview of 'retrenchment' defined under section 2 (oo) of the I.O. Act in which the employer had either issued a charge sheet for the alleged misconduct or taken some overt act in the direction of punishing the employee. Admittedly in this case, neither a charge sheet was issued nor the misconduct was mentioned in the order of termination, but that should not, in our opinion, preclude the employer from proving before the Labour Court that the conduct of the employees was such that they should not either be reinstated in service or paid back wages and their discharge or termination be maintained." 10. Having appreciated the rival submissions, I am of the opinion, that in view of the stand of the employer that the order of termination has occasioned because of misconduct, it has right to adduce evidence and the Tribunal did not commit any illegality in remanding the matter to the Labour Court and permitting the parties to adduce evidence on the point of misconduct. The ratio of State Bank of India (supra), on which Mr. Gupta has placed heavy reliance, is clearly distinguishable. In the aforesaid case, the stand of the employee was that the employer did not allow him to perform his duty, on the basis of verbal orders, which was not challenged by the employer. The Division Bench in the said case was cautious in saying that the Bank at no stage has claimed to have dismissed or discharged the employee and in such a situation in the absence of order of dismissal, discharge or termination prayer to adduce evidence cannot be allowed. It further stated that had the bank issued even an order of termination simplicitor it could have justified its action before the Tribunal by adducing evidence that in fact it was an order of dismissal of the ground of misconduct committed by the respondent i.e. employee. This is not the position here, the employer has clearly stated that the service of the employee was terminated on account of misconduct which was not the situation in the case of State Bank of India (supra). In my opinion, existance or non-existance of an order is not very material. What is material is the stand of the employer. Employer has taken a stand that service of the employee was terminated. As such the decision relied on, is clearly distinguishable. 11. As a last straw, Shri Gupta contends that the appeal presented before the appellate Court was incompetent as the same was not presented by the employer, which renders the impugned order vitiated in the eye of law. Employer has taken a stand that service of the employee was terminated. As such the decision relied on, is clearly distinguishable. 11. As a last straw, Shri Gupta contends that the appeal presented before the appellate Court was incompetent as the same was not presented by the employer, which renders the impugned order vitiated in the eye of law. Shri Gupta points out that Sec. 29 of the M.P.I.R. Act contemplates appearance of a legal practitioner in any proceeding before the Labour Court/Industrial Court and no leave having been obtained by the lawyer, the presentation of the appeal is incompetent. Section 29 of the M.P. Industrial Relations Act reads as follows :- "29. Appearance by legal practitioner :-Save as provided in sub-section (2), no legal practitioner shall be entitled to appear in proceedings under this Act. (2) A legal practitioner may appear – (i) in any proceeding in connection with an offence under this Act; (ii) in any other proceedings before a Labour Court or the Industrial Court with the leave of the Court." 12. Rule 72 of the M.P. Industrial Relations Rules, 1961 provides for presentation of appeal, same reads as follows :- "Rule 72. A memorandum of appeal or a petition for review and other application referred in rule 84 shall be presented to the Registrar of the Industrial Court either personally or through authorised representative or be sent by registered post" . To me it appears to be plain that the aforesaid rule provides for various modes of presentation of memorandum of appeal and the presentation is to be made before the Registrar of the Industrial Tribunal, and one of the mode of presentation is through authorised representative. 13. Section 29 of the M.P. Industrial Relations Act, referred to above, operates in the field of appearance of a legal practitioner before the Labour Court or the Industrial Court and the same is permitted with the leave of Court. As pointed out earlier, memorandum of appeal is required to be presented before the Registrar of the Industrial Court whereas section 29 contemplates of appearance before the Labour Court or the Industrial Court. Registrar of the Industrial Court cannot be equated with the Labour Court of the Industrial Court so as to attract the provision of Sec. 29 of the M.P. Industrial Relations Act. 14. Registrar of the Industrial Court cannot be equated with the Labour Court of the Industrial Court so as to attract the provision of Sec. 29 of the M.P. Industrial Relations Act. 14. While answering the aforesaid question, the appellate Court found that the advocate who has presented the appeal was authorised by the Chief Law Officer, who in turn was the constituted attorney of the employer to present the appeal. The appellate Court found that the judgment of the Industrial Court in the case of Kishan Lal v. Modern Agro Industry, Bhopal (1992 MPLSR 557) was clearly distinguishable as in the said case power filed did not disclose that the party had authorised the counsel to present the appeal. However, in the case, in hand, such an authorisation was given. Shri Gupta could not point out that the finding recorded by the Industrial Court that the appeal was presented by the counsel who was authorised by the constituted attorney of the employer is erroneous. On the finding of the Industrial Court that the Advocate was authorised to present the appeal by the employer, I do not find any illegality in the presentation of the appeal by the lawyer. Accordingly, I do not find any substance in this submission of the learned counsel that the appeal presented before the Industrial Court was incompetent. 15. In the result, I do not find any merit in this writ petition. Accordingly, it is dismissed. There shall be no order as to cost. Security amount, if deposited, be refunded to the petitioner.