Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 186 (PNJ)

Des Raj Verma v. Presiding Officer, Labour Court

2003-01-31

S.S.SARON

body2003
Judgment S.S.Saron, J. 1. This petition under Article 226/227 of the Constitution of India has been filed for quashing the order dated 5.12,1984 (Annexure P-2) in pursuance of which the petitioner has been dismissed from service of the Punjab State Cooperative Supply & Marketing Federation Limited, (Markfed for short), as also for quashing the order dated 28.3.1994 (Annexure P-8) passed by the Labour Court, Chandigarh, whereby the Labour Court held that it had no territorial jurisdiction to decide the matter and it was left to the workman to issue fresh demand notice to obtain reference from the appropriate Government. 2. The facts leading to the case are that the petitioner was appointed as a Field Sub Inspector in the Markfed in 1970. He was placed under probation for a period of one year as required under the Punjab State Cooperative Supply and Marketing Federation Employees (Common Cadre) Rules, which govern the service conditions of the employees of the Markfed. The petitioner completed his probation period satisfactorily and there was no extension. On completion of the probation period he became a permanent employee of the Markfed. The Post of Field Inspector was re-designated as Field assistant. The petitioner claims that he is entitled to be reinstated in service and given all the attending benefits as have been given to one Jagdish Lal Sharma who was also dismissed by the same order dated 5.12.1984 (Annexure P-2). 3. The respondents have filed their reply in which preliminary objections has been taken that the writ petition suffers from laches. It is further stated that the petitioner had been dismissed from service vide order dated 5.12.1984 (Annexure P-2) after holding a regular departmental enquiry. Besides, the petitioner kept silent since 5.12.1984 till 3.8.1992 when he raised notice of demand after eight years. Therefore, it is prayed that the writ petition be dismissed. 4. I have heard the learned counsel for the parties and with their assistance have gone through the records of the case. 5. The learned counsel appearing for the petitioner contended that in respect of the allegations attributed to the petitioner and Jagdish Lal Sharma regarding misappropriation, they had been acquitted by the Court of learned Additional Sessions Judge, Ludhiana, vide order dated 25.7.1983. 5. The learned counsel appearing for the petitioner contended that in respect of the allegations attributed to the petitioner and Jagdish Lal Sharma regarding misappropriation, they had been acquitted by the Court of learned Additional Sessions Judge, Ludhiana, vide order dated 25.7.1983. Besides, it is contended that the order dispensing with the services of the petitioner had been passed by the Managing Director Markfed who is not the competent authority to pass such an order. Lastly, it is contended that Jagdish Lal Sharma who was suspended along with the petitioner and was also removed in pursuance of the same order dated 5.12.1988, has been reinstated in service after the Labour Court Chandigarh had accepted his plea. The learned counsel further contends that the Labour Court vide its impugned award dated 28.3.1994 (Annexure P-8) had wrongly non suited the petitioner for want of jurisdiction. In fact an objection with regard to the territorial jurisdiction had also been taken in the case of Jagdish Lal Sharma and an issue was also framed in this regard. However, the Labour Court vide its award dated 21.3.1991 (Annexure P-5) in the case of Jagdish Lal Sharma did not advert to this objection and answered the reference in favour of Jagdish Lal Sharma on the ground that the Managing Director of Markfed had no jurisdiction to pass the order of dismissal. The Markfed assailed the said order of the Labour Court dated 21.3.1991 (Annexure P-5) by way of Civil Writ Petition No. 8871 of 1992 in this Court and the said petition was disposed of vide order dated 29.10.1992 by ordering reinstatement of the workman with continuity of service with all attending benefits but 50% back wages. In these circumstances, the petitioner contends that he is also entitled to similar relief. 6. On the other hand, the learned counsel for respondent No. 2 Markfed contended that the petition is highly belated and there is no parity between the case of the petitioner and Jagdish Lal Sharma inasmuch as there has been considerable delay on the part of the petitioner in making a demand notice. Besides, the Labour Court has rightly non suited the petitioner for want of jurisdiction. Consequently the petition is liable to be dismissed. 7. It is not disputed that the petitioner and Jagdish Lal Sharma were placed under suspension with effect form 11.6.1980. Besides, the Labour Court has rightly non suited the petitioner for want of jurisdiction. Consequently the petition is liable to be dismissed. 7. It is not disputed that the petitioner and Jagdish Lal Sharma were placed under suspension with effect form 11.6.1980. They were charge-sheeted for mis-appropriation of sale proceeds amounting to Rs. 22,000/- in connivance with each other. The case set up against them was that the Government had announced new price of the fertilizers and they sold 400 bags of Urea vide cash memo dated 7.6.1980 at the new price but in fact deposited the sale proceeds at the old rates of fertilizers. On the same allegations FIR was registered against the petitioner and Jagdish Lal Sharma in which they were initially convicted and sentenced by the Judicial Magistrate, Ist Class, Ludhiana, vide his order dated 8.2.1983. However, in appeal, they were acquitted by the learned Additional Sessions Judge, Ludhiana, on 25.7.1983. 8. The question that requires to be considered is whether the Labour Court respondent No. 1 erred in not entertaining the petition on the ground of jurisdiction in pursuance of its impugned order dated 28.3.1994 (Annexure P-8) as also whether the Managing Director of Markfed was in any case competent to pass the impugned order dated 5.12.1984 (Annexure P-2) dismissing the petitioner from service. Lastly, whether there has been delay on the part of the petitioner in approaching the Labour Court which disentitled him for the relief claimed. 9. The contention whether the Presiding Officer, Labour Court, Chandigarh, in pursuance of order dated 28.3.1994 (Annexure P-8) could decline to entertain the reference for want of territorial jurisdiction may be considered. During proceedings before the Labour Court, which resulted in passing of the impugned award dated 28.3.1994, Markfed had raised a preliminary objection that the petitioner was posted at Ludhiana at the relevant time and; therefore, the Labour Court at Chandigarh had no territorial jurisdiction to decide this case. During proceedings before the Labour Court, which resulted in passing of the impugned award dated 28.3.1994, Markfed had raised a preliminary objection that the petitioner was posted at Ludhiana at the relevant time and; therefore, the Labour Court at Chandigarh had no territorial jurisdiction to decide this case. The learned Labour Court relied upon a decision dated 17.8.1993 of this Court in the case of Pritam Singh v. Presiding Officer (Civil Writ Petition No. 4707 of 1989) which is to the effect that situs of employment where worker was employed and order of dismissal of service was received would determine the appropriate government competent to make a reference under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and not at Head Office of the company from where said order was passed. On the basis of Pritam Singhs case (supra) it was held by the Labour Court that the petitioner admittedly was working at Ludhiana and he was suspended and ultimately terminated. Therefore, the Labour Court at Chandigarh had no territorial jurisdiction to decide the dispute. It may be noticed that in Pritam Singhs case (supra), it was found as a matter of fact there was no escape but to conclude that the situs of the employment where the worker was employed and the order of dismissal of his service, suspension or retrenchment was received would determine the appropriate government competent to make reference under Section 10 of the Act, and not where the head office of the Company was located. 10. In the case in hand, the award dated 21.3.1991 (Annexure P-5) in respect of Jagdish Lal Sharma it was observed that the order of dismissal dated 5.12.1984 (Annexure P-2) came to his knowledge when he was attending the proceedings before the Labour Court at Chandigarh on 23.4.1995. The case of the petitioner is that he came to know of this order dated 5.12.1984 (Annexure P-2) from Jagdish Lal Sharma. The petitioner alleges in para 13 of the petition that Jagdish Lal Sharma had already moved an application under Section 33-C (2) of the Act for determination of amount payable to him being the difference between subsistence allowance paid at the rate of 50% and the amount he was entitled to receive during the period of suspension. The petitioner alleges in para 13 of the petition that Jagdish Lal Sharma had already moved an application under Section 33-C (2) of the Act for determination of amount payable to him being the difference between subsistence allowance paid at the rate of 50% and the amount he was entitled to receive during the period of suspension. It is further averred that the Management raised an objection before the Labour Court, U.T. Chandigarh, that it had no jurisdiction to entertain the application which it is stated was over-ruled and an order was passed directing the respondents to make payment to Jagdish Lal Sharma. This material aspect regarding over-ruling of the objection regarding jurisdiction has not been denied by the respondents in the corresponding para 13 of the written statement. It is only stated that the application has no bearing with the case of the petitioner as he has not moved an application. Rest of the observations it is stated do not relate to the case of the petitioner. Therefore, it is not in dispute that the objection regarding jurisdiction of the Labour Court at Chandigarh to entertain the petition was raised but was not considered in the case of Jagdish Lal Sharma. 11. After considering the question regarding the territorial jurisdiction of the Labour Court to adjudicate the matter, I am of the view that the petitioner at this stage is not liable to be relegated back to the Labour Court at another place even if the Labour Court at Chandigarh had no jurisdiction to entertain the reference made to it under Section 10 of the Act by the U.T. Administration Chandigarh. The Markfed is amenable to the writ jurisdiction of this Court as it is a State within the meaning of Article 12 of the Constitution of India as held in Kuldip Singh v. The Presiding Officer, Labour Court Patiala and Ors., 1987(2) S.L.R. 112. Besides, Markfed is a Cooperative Society registered under the Punjab Cooperative Societies Act, 1961 and the service conditions of its employees like the petitioner are governed by the service rules framed by the Markfed. Therefore, in view of the judgment of the Supreme Court in U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey, A.I.R. 1999 S.C. 753, Markfed would be amenable to the writ jurisdiction of this Court. Therefore, in view of the judgment of the Supreme Court in U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey, A.I.R. 1999 S.C. 753, Markfed would be amenable to the writ jurisdiction of this Court. In somewhat similar circum stances this Court in the case of Punjab Financial Corporation v. The Union Territory, Chandigarh, 1992(3) S.L.R. 657 wherein the point of jurisdiction of the Labour Court at Chandigarh was decided in favour of the management therein, yet the workman was not relegated to his remedies under the Industrial Law in view of the time already consumed in litigation. In taking the said view this Court was fortified by the following observations of the Honble Supreme Court in the case of D.P. Maheshwari v. Delhi Administration and Ors., (1983)4 Supreme Court Cases 293 where on different facts the Court had to say:- "Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging in the latter from court to court for adjudication of peripheral issues avoiding decisions on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workman in this fashion. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Article 136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice". 12. Keeping the above in view, even if it be taken that the Labour Court at Chandigarh had no jurisdicti6n to entertain the reference made to it, the validity of the order dated 5.12.1984 (Annexure P-2) may be examined independently. 13. The case set up by the petitioner is that after acquittal on 25.7,1983, the petitioner and Jagdish Lal Sharma approached the Markfed for reinstatement in service. However, the Markfed in pursuance of the impugned order dated 5.12.1984 (Annexure p-2) dispensed with their services. Jagdish Lal Sharma approached the Labour Court against his dismissal. The primary ground for challenge to the order of the Managing Director who terminated their services is that he had no authority to do so. However, the Markfed in pursuance of the impugned order dated 5.12.1984 (Annexure p-2) dispensed with their services. Jagdish Lal Sharma approached the Labour Court against his dismissal. The primary ground for challenge to the order of the Managing Director who terminated their services is that he had no authority to do so. The claim set up by Jagdish Lal Sharma was that the Managing Director could not pass the order of dismissal and it was the Administrative Committee of the Markfed which could pass the said order. The learned Labour Court took into account Rule 2.15 of the Punjab State Supply and Marketing Cooperative Services (Common Cadre) Rules, 1967 (1967 Rules - for short) to determine as to who was the competent authority to pass the order dated 5.12.1984 (Annexure P-2). It was held that according to the aforesaid Rule 2.15, the Administrative Committee of Markfed was the competent authority to impose the penalty of dismissal at the relevant time and not the Managing Director. The Administrative Committee could delegate its power if it so desired to the Chairman. However the record did not show any such delegation of power. Accordingly, it was held that it was not established as to how the Managing Director assumed power to order dismissal of Jagdish Lal Sharma. The learned Labour Court relied upon a Full Bench decision of this Court in Bhupinder Singh v. State of Punjab, 1985(3) S.L.R. 643. In Bhupinder Singhs case (supra), one of the issues was whether the Managing Director of the Mark-fed who had issued the order of termination, had authority to issue such an order. After referring to the 1967 Rules it was held that in the absence of specific delegation to the Managing Director, he had no authority to terminate the employees. In the present case the impugned order dated 5.12.1984 (Annexure P-2) dismissing the petitioner from service has been passed by the Managing Director of Markfed. The same is a common order dismissing Jagdish Lal Sharma and the petitioner from service. Nothing has been shown that the Managing Director had been delegated with the authority to dismiss the petitioner from service. In the present case the impugned order dated 5.12.1984 (Annexure P-2) dismissing the petitioner from service has been passed by the Managing Director of Markfed. The same is a common order dismissing Jagdish Lal Sharma and the petitioner from service. Nothing has been shown that the Managing Director had been delegated with the authority to dismiss the petitioner from service. It may also be noticed that against the order dated 21.3.1991 (Annexure P-5) in respect of Jagdish Lal Sharma, the Markfed field Civil Writ Petition No. 8871 of 1992 in which the following order was passed by a Division Bench of this Court on 29.10.1992:- "Counsel for the parties state that they have instructions to settle the dispute that the Management offers the Workman re-instalment with continuity of service with all attending benefits but 50% back wages. So directed, with the result that the proceedings before the Labour Court shall stand disposed of. The aforesaid directions be complied within a period of six weeks. The writ petition stands disposed of accordingly." 14. As already noticed the order dated 5.12.1984 (Annexure P-2) is a common order dismissing the petitioner and Jagdish Lal Sharma from the service of Markfed. The Markfed had settled the dispute with Jagdish Lal Sharma in terms of the order dated 29.10.1992 passed by a Division Bench of this Court as referred to above. Therefore, there is no reason as to why the petitioner should also not be given the same benefits as has been given to Jagdish Lal Sharma. Therefore, keeping in view the above facts and circumstances and the fact that the impugned order dated 5.12.1984 (Annexure P-2) has been passed by an authority not competent to pass the same as also the fact that the co-employee of the petitioner i.e. Jagdish Lal Sharma who was dismissed from he service in terms of the said order has been reinstated in service, there is no reason to deny the said benefit to the petitioner. 15. The objection of the Markfed as regarded delay in making the demand notice remained to be considered. The contention raised by the Markfed is that the petitioner was dismissed from service on 5.12.1984 and he kept silent till 3.8.1992 when he made a demand notice. Therefore, for the period of eight years that he kept silent, he is not entitled to any relief. The contention raised by the Markfed is that the petitioner was dismissed from service on 5.12.1984 and he kept silent till 3.8.1992 when he made a demand notice. Therefore, for the period of eight years that he kept silent, he is not entitled to any relief. The petitioner has though stated that he served a demand notice dated 28.6.1985 (Annexure P-3) but the Management did not accept the said demand notice and he had to move the Assistant Labour Commissioner-cum-Conciliation Officer, U.T. Chandigarh, for taking conciliation proceedings. It is further stated that in the meantime this Court had stayed proceedings pending before the Labour Court, in all such cases which were referred to Chandigarh Administration for adjudication on the ground that Chandigarh Administration was not the "Appropriate Government" to make reference to the Labour Court and it was not a Central Government. This matter kept pending before this Court for considerable long time with the result that no reference was being made by the Chandigarh Administration and the case of the petitioner which was at the conciliation stage had remained undecided because of the stay granted by this Court and the petitioner enquired from the office of the Assistant Labour Commissioner and Home Department as to what happened to his case since he had not received any intimation for making reference to the Labour Court for adjudication. The petitioner was told that his case was not traceable. Accordingly, he served another demand notice dated 3.8.1992 (Annexure P-4). These averments of the petitioner have been denied by the respondent Markfed. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India is not to go into the question of fact. Therefore, in view of the denial by the respondents and in the absence of any material placed on record by the petitioner to show that he had made a demand notice dated 28.6.1985 (Annexure P-3), it is taken that no such demand notice was made and that the only demand notice that has been made is dated 3,8.1992 (Annexure P-4), In these circumstances, it is to be seen whether there has been any delay on the apart of the petitioner in making the demand notice dated 3.8.1992 (Annexure P-4) from the date of his dismissal i.e. 5.12.1984. The Honble Supreme Court in the case of Ajaib Singh v. The Sirhind Co-operative Marketing Service Society, (1999(2) R.S.J. 407, held that the provisions of Article 137 of the Limitation Act, 1963 are not applicable to the proceedings under the Act and that relief under the Act cannot be denied to the workman merely on the ground of delay. The following observations in Ajaib Singhs case (supra) are apposite:- "It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back ages instead of full back wages." 16. Delay by itself, therefore, cannot be a ground for disentitling the petitioner to the relief claimed. The question of delay is a factor to be considered from the facts and circumstances of each case. In the case in hand, as already noticed above, the co-employee of the petitioner namely Jagdish Lal Sharma, who was dismissed in pursuance of the same order dated 5.12.1984 (Annexure P-2) by which the petitioner has also been dismissed, has been reinstated in service. Rather the Management settled the dispute with him and reinstated him (Jagdish Lal Sharma) in service with continuity of service and all attending benefits but 50% back wages. This is so recorded in the order dated 29.10.1992 passed by this Court in C.W.P. No. 8871 of 1992, reference to which has been made above. Therefore, it would be iniquitous to deprive the petitioner of the same relief which has been granted to Jagdish Lal Sharma on the plea of delay. 17. This is so recorded in the order dated 29.10.1992 passed by this Court in C.W.P. No. 8871 of 1992, reference to which has been made above. Therefore, it would be iniquitous to deprive the petitioner of the same relief which has been granted to Jagdish Lal Sharma on the plea of delay. 17. Therefore, the contention of the respondent Markfed regrading delay in raising demand from 5.12.1984 to 3.8.1992 is not to come in the way of the petitioner and the relief can be moulded by depriving him the back wages for the period from 5.12.1984 to 3.8.1992. This would be in accord with the judgment of the Honble Supreme Court in the case of Gurmail Singh v. Principal Government College of Education and Ors., 2000(2) R.S.J. 147, wherein it was held that if the order of dismissal is challenged belatedly the dispute would still continue for adjudication and the only question would be to deprive back wages for the period of delay in raising such a dispute if on merits it is to succeed. Consequently, the writ petition is partly allowed and the order dated 5.12.1984 (Annexure P-2) and the order of the Labour Court dated 28.3.1984 Annexure P-8 are quashed and the petitioner shall be reinstated in service with continuity of serv ice with all attending benefits. However, the petitioner shall not be entitled to any back wages for the period from 5.12.1984 to 3.8.1992 and thereafter he would be entitled to 50% back wages. There shall be no orders as to costs.