Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 1466 (RAJ)

RAMESH KUMAR v. R. S. R. T. CORPORATION, JAIPUR

2002-08-26

D.N.JOSHI, R.BALIA

body2002
Judgment RAJESH BALIA, J. ( 1 ) HEARD learned counsel for the parties. ( 2 ) THIS appeal is directed against the judgment dated 24/11/1999 by which the learned single Judge has set aside the award made by learned Labour Court in favour of the appellant. ( 3 ) THE appellant was terminated from service of Rajasthan State Road Transport corporation on 18/02/1985 by finding the alleged misconduct against him. The appellant was appointed as a Conductor on 17/08/1979. In respect of the aforesaid dismissal, the appellant raised an Industrial dispute, which was referred to Labour Court vide notification dated 8/10/1997 by the state Government. After filing the statement of claim and reply evidence was led by the appellant as well as by the respondent-petitioners. The Labour Court on the basis of material produced before it formed an opinion that the charges of misconduct levelled against the workman has not been proved, consequently, the punishment of dismissal was set aside and he was ordered to be reinstated by award dated 2/03/1990. ( 4 ) THE aforesaid award was challenged by the Corporation by filing a writ petition. The learned single Judge by referring to his judgment delivered in another case in which he has held that where the removal is for misconduct and there is sufficient evidence on record to show that misconduct was committed, the Labour Court committed a jurisdictional error in interfering with the order of punishment and he further stated that the said judgment has been upheld by Division Bench, the petition was also allowed. The learned single Judge has not referred to in his order either to the facts of the present case as has been noticed by the Tribunal nor he has referred to the finding recorded by the Tribunal nor the judgment speaks about the facts of the present case, the learned single Judge has also not reached and conclusion that finding recorded by the Labour Court is vitiated or erroneous in any manner much less that it suffers from any error apparent on the face of record so as to warrant a writ. ( 5 ) FROM the perusal of the judgment, it appears that the judgment proceeds on assumption that where misconduct in a departmental enquiry is proved, the Labour court does not have jurisdiction to interfere with the order of punishment. ( 5 ) FROM the perusal of the judgment, it appears that the judgment proceeds on assumption that where misconduct in a departmental enquiry is proved, the Labour court does not have jurisdiction to interfere with the order of punishment. The conclusion apparently appears to us is not well founded on facts as well as also not in law. ( 6 ) THE jurisdiction of the Tribunal to deal with punishment of dismissal emanate from section 11-A of the I. D. Act, 1947, which reads as under:"where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or national Tribunal, as the case may be, is satisfitisfied that the order of discharge of dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if and as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: provided that in any proceeding under this section the Labour Court, Tribunal or national Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. " ( 7 ) A perusal of the aforesaid provisions goes to show that the statute confers jurisdiction on the Labour Court to interfere with the punishment of dismissal or discharge, even in cases the misconduct alleged against the workman is proved and power has been conferred to direct the reinstatement of the workman on such terms and conditions as it thinks fit, which include the award of any lesser punishment in view of discharge or dismissal, as the case may require. ( 8 ) THEREFORE, to say that the Labour Court has no jurisdiction to interfere with the award of punishment of misconduct having proved is apparently in derogation to provisions contained in Section 1l-A. This is apparent from the fact that while interfering with the punishment of dismissal or discharge, the labour Court has been conferred powers to inflict lesser punishment. This obviously can happen in cases where misconduct alleged to have been proved against the delinquent workman and the question is only about the appropriate punishment to be inflicted for the misconduct proved. ( 9 ) IN this connection, reference may be made to the decision of the Honble Supreme court in the case of the Workmen of Firestone tyre and Rubber Co. of India Pvt. Ltd. v. Management and Ors. AIR 1973 SC 1227 : 1973 (1) SCC 813 : 1973-I-LLJ-278. The Honble supreme Court has held that Section 11-A was inserted in the Act of 1947 w. e. f. 15/12/1971. Before its insertion, the Honble supreme Court in the case of Indian Iron and steel Co. Ltd. v. Their Workmen AIR 1958 SC 130 : 1958-I-LLJ-260, had laid down the principle while considering Tribunals s power to interfere with the managements decision to dismiss, discharge or terminate the services of the workman, that in case of dismissal on a proved misconduct, the Tribunal does not act as a Court of appeal and it cannot substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimization, unfair labour practice etc. on the part of the management. ( 10 ) THE International Labour organisation in its recommendation concerning termination of employment at the initiative of the employer, adopted in June, 1963 has recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination among others before a neutral body such as an arbitrator, a count and arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and the other circumstances relating to the case and to render a decision on the justification of the termination. The international Labour Court has further recommenced that the neutral body should be empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned unless reinstated with unpaid wages, should be paid adequate compensation or afford some other relief. ( 11 ) THE Honble Supreme Court considered the effect of insertion of Section 11-A in the Act of 1947. ( 11 ) THE Honble Supreme Court considered the effect of insertion of Section 11-A in the Act of 1947. The Court said that the above position has been completely changed by Section 11-A. It is, now, obligatory on an employer to hold a proper domestic enquiry in which all material evidence will have to be adduced. When a dispute is referred for adjudication and it is found that the domestic enquiry in which all material evidence will have to be (sic) adduced or it is found that no domestic enquiry at all had been conducted, the order of discharge or termination passed by the employer becomes without anything more, unjustified. . . . . . Even in cases where a domestic enquiry has been held and finding of misconduct recorded, the Labour Tribunals have now full power and jurisdiction to re appraise the evidence and to satisfy themselves whether the evidence justifies the finding of misconduct. Even if, the enquiry proceedings are held to be proper and the finding of misconduct is also accepted, the Tribunal has now power to consider whether the punishment of dismissal or discharge was necessary for the type of misconduct of which the workman is found guilty. In such circumstances the tribunal can also give any other relief to the workman including the imposing of a lesser punishment. ( 12 ) THUS, the conclusion of the learned single Judge that the Tribunal has no jurisdiction to interfere with the punishment is contrary to law and it is otherwise apparent from Section 11-A of the I. D. Act, 1947. To i hold otherwise will be contrary to mandate of legislation empowering the Labour Court to examine the validity of findings recorded by the departmental authority as well as the quantum of the misconduct imposed against him. ( 13 ) IT may further be noticed that in the aforesaid decision the Honble Supreme Court after referring to number of decisions which have been rendered earlier and summarising the proposition emerging therefrom rejected the extreme view propounded by both the sides and clearly indicated the changes which have been brought by Section 11-A in either case where the enquiry has been conducted before passing the order of punishment and where no such enquiry has been conducted or enquiry conducted Is found to be defective. ( 14 ) THE Court said that previously the tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in India Iron and Steel Co. Ltd. (supra) and cases existing. The words "in the course of adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified" clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has not given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. ( 15 ) THIS interpretation of Section 11-A clearly indicates that with the insertion of section 11-A in the Act of 1947, the Tribunal is clothed with power both to examine the validity of finding recorded by the Enquiring officer in the domestic enquiry as well as the quantum of punishment imposed in case alleged imposition is proved. This power has also its inherent limitation that it has to be exercised on well settled principles viz. that the power should be exercised judiciously. Thus the judgment of learned single Judge cannot be sustained on its reasoning. ( 16 ) COMING on the merits of the case, the respondent has chosen to lead independent evidence in support of its findings about the guilt of the petitioner-workman before the tribunal and it last contended by producing is satya Narain A. T. 1, as its witness before the labour Court and it did not produce the other two witnesses who were also the employees of the respondent-petitioner and were alleged to be present at the time of incident and examined during the course of departmental enquiry The labour Court while examining the statements made before it, noticed vital contradictions in the statement of Satya Narain and did not consider it reliable. Very importantly the number of way bill seized at the time of alleged incident has been mentioned by Satya Narain in his statement before the departmental enquiry as 0846951, whereas, the way bill which was seized from the appellant was produced before the Tribunal by the employer is 016921 a Ex. W/l. He denies any signatures on Ex. W/l. The said Satya Narain admitted that what is stated before the Tribunal was not stated in his earlier statement, when he was confronted with he same. The witness further tried to explain that the number of way bill in question may have been wrongly written. In his statement before the departmental enquiry and at the close of the cross- examination he became categorical that, it is incorrect that he has stated the correct way bill. In his earlier statement Ex. W/2, which has been produced before the tribunal was stated to be the correct way bill which has been seized from the delinquent. However, the Tribunal has further noticed that two other witnesses namely K. K. Saxena and mohan Lai Soni, who were present at the time of alleged occurrence were examined during departmental enquiry. In the statement of mohan Lai, the number of the way bill has been stated to be same as has been stated by Satya narain in his statement. Finding this discrepancy, the Tribunal drew adverse inference because of non- production of the relevant witnesses before the departmental enquiry. By noticing all these, the Tribunal found that the solitary statement of Satya narain is not credible enough in the absence of corroborative evidence and noticed that the employer has withheld the other valuable evidence from the Court. ( 17 ) THE Tribunal has further found that at the time of inspection there were 50 passengers in the Bus, 37 had tickets issued from counter and for remaining 13 persons tickets were issued by the delinquent workman, is established by the way book. The Tribunal also noticed that workman has categorically stated that at the time of inspection Shri K. K. Saxena was drunk and had demanded money as gratification from the workman before putting remark on way bill, which appear in the Ex. W/l. However said K. K. Saxena has not been produced, to whom such questions could be put. The Tribunal also noticed that workman has categorically stated that at the time of inspection Shri K. K. Saxena was drunk and had demanded money as gratification from the workman before putting remark on way bill, which appear in the Ex. W/l. However said K. K. Saxena has not been produced, to whom such questions could be put. ( 18 ) IN totality of aforesaid appreciation of material before it the Tribunal held that misconduct alleged apart the workman was not proved. ( 19 ) LEARNED counsel for the respondent employer has vehemently urged that it is not necessary to produce any corroborative evidence in support of statement made by the inspector who has inspected the vehicle and merely because Shri K. K. Saxena and Shri m. L. Soni had not been produced, his testimony could not be discarded. ( 20 ) WE are not impressed by the contention. It is true and cannot be doubted that even single testimony of the person who was inspector may suffice to prove the misconduct and solely because it is not corroborated by other evidence his statement need not be discarded. But the principle underlying is that testimony of such witness must be inspiring confidence about its credibility. It is not an inflexible rule that solely because the inspector concerned has been produced, his testimony like any other testimony need not be evaluated to find its trustworthiness. It depends on facts and circumstances of each case whether on the scales of appreciation such testimony is found credible. Such assessment falls within the ambit of appreciation of evidence. If in totality of circumstances, the statement of such witness is not found trustworthy enough to rest finding on it and other corroborative evidence, existence of which is admitted is withheld, such a factor can be taken into consideration in reaching conclusion whether the alleged misconduct of the delinquent has been proved. The decision relied on by learned counsel for the respondent employee does not run counter to such principle. ( 21 ) ONCE the Labour Court reached its conclusion on appreciation of material before it that alleged misconduct of the workman has not been proved by the employer. ( 22 ) THE consequences were necessary to follow namely setting aside of the punishment and reinstatement. ( 21 ) ONCE the Labour Court reached its conclusion on appreciation of material before it that alleged misconduct of the workman has not been proved by the employer. ( 22 ) THE consequences were necessary to follow namely setting aside of the punishment and reinstatement. ( 23 ) NOTHING has been pointed out which could make the finding recorded by the Labour court to suffer from any such error apparent which could vitiate it and require its reappreciation by this Court or to be reappreciated by the Tribunal by issuing writ of certiorari. This is not for this Court to sit in appeal over findings of facts recorded by labour Court as a Court of appeal to reach its own conclusion by reappreciating evidence, unless the finding is perverse or not founded on any material on record or is found on irrelevant considerations or by ignoring relevant considerations which could vitiate such conclusions of fact. ( 24 ) ACCORDINGLY, this appeal is allowed. The judgment of learned single Judge is set aside and the award of the Labour Court is restored. ( 25 ) NO order as to costs. .