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2003 DIGILAW 957 (PNJ)

Baljinder Singh v. Presiding Officer

2003-07-16

SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. Baljinder Singh petitioner, who was the workman has filed the instant writ petition challenging the award dated 8.4.1985 passed by the Presiding Officer, Labour Court, Bathinda (hereinafter referred to as the Labour), vide which the petitioner was ordered to be reinstated with continuity of service without back wages. 2. The petitioner was working as Conductor with the Punjab Roadways, Muktsar. His services were terminated on 10.4.1981 after holding a regular enquiry by the respondents. He raised an industrial dispute and the matter was referred by the appropriate Government to the Labour Court for its adjudication. On the basis of the pleadings of the parties before the Labour Court the following issues were framed ;- 1. Whether there has been a fair and proper enquiry? 2. Whether the order of termination of services of the workman is justified and in order? 3. Relief. 3. On issue No. 1 it was held that the respondent-Management did not conduct the enquiry in accordance with the rules, therefore this issue was decided against the Management. On issue No. 2, it was held that the order of termination of services of the petitioner was bit hard and not justified. Keeping in view the said fact, it was held that the ends of justice would be met in case the petitioner-workman is reinstated with continuity of service, though without any back wages. Accordingly the petitioner was ordered to be reinstated with continuity of service without back wages. The petitioner has challenged this part of the award passed by the Labour Court. 4. The contention of learned counsel for the petitioner is that once it was held by the Labour Court that the domestic enquiry was not conducted according to the rules, then the respondent-Management should not have been allowed to lead evidence to justify its action for terminating the services of the petitioner. It was further submitted that when the respondent-Management was allowed to lead the additional evidence for justifying its order of termination of the services of the petitioner, the petitioner should also have been allowed to rebut that evidence. However, no opportunity was granted to him. It was further submitted that when the respondent-Management was allowed to lead the additional evidence for justifying its order of termination of the services of the petitioner, the petitioner should also have been allowed to rebut that evidence. However, no opportunity was granted to him. Learned counsel for the petitioner submitted that on the basis of the aforesaid additional evidence, the Labour Court has wrongly decided issue No. 2 and it has been wrongly held that the petitioner-workman has embezzled some amount collected by him from passengers without issuing tickets. According to the learned counsel for the petitioner, the termination of the services of the petitioner was wholly illegal and he should have been reinstated with continuity of service with full back wages, and the Labour Court was jot justified to deny the back wages to him. In support of his contention, learned counsel for the petitioner has placed reliance upon Hari Palace, Ambala City v. The Presiding Officer, Labour Court and Anr.,1 (1979)81 P.L.R. 720 (F.B.). Learned counsel for the petitioner further submitted that even if the order of termination is justified by the management before the Labour Court, the termination of the workman would be effective from the date of award of the Labour Court and not from the date on which the Management had terminated the services of the petitioner. Therefore, in no circumstance, the petitioner could have been denied the salary from 10.4.1981 to 8.4.1986. In support of his contention, learned counsel has relied upon Gujarat Steel Tubes Ltd. and etc. v. Gujarat Steel Tubes Mazdoor Sabha and Ors.2 A.I.R. 1980 S.C. 1896 and a decision of this Court in Zora Singh v. The Koom Kalan Coop. Agri. Service Society Ltd Koom Kalan and Anr.3 Civil Writ Petition No. 2212 of 1986 decided on 12.8.1986. 5. On the other hand, learned counsel for the respondent-Management argued that inspite of the fact that the Labour Court has held the enquiry conducted by the management as defective and invalid, the management has a right to adduce evidence for the first time before the Tribunal to justify its action against the workman. In case the management ask for such permission, the Labour Court has the jurisdiction to go into the merits of the case on the basis of the evidence adduced before it by the parties. In case the management ask for such permission, the Labour Court has the jurisdiction to go into the merits of the case on the basis of the evidence adduced before it by the parties. Therefore, it is not incumbent upon the Labour Court to set aside the order of dismissal or termination of the services of a workman on the basis of a defective enquiry when the management opts to adduce evidence before the Labour Court to justify its action. Learned counsel for the respondent further submitted that the respondent-Management has adduced evidence before the Labour Court to justify its action of terminating the services of the petitioner. Though the petitioner was provided full opportunity to rebut the evidence, but he could not rebut the evidence led by the respondent-Management. On the basis of the evidence led by the respondent-Management, the Labour Court came to the conclusion that the termination of the services of the petitioner was justified. But taking a lenient view in the matter, he was reinstated with continuity of service without back wages. Keeping in view the totality of the circumstances, the Labour Court in its discretion decided not to grant back wages to the petitioner. Learned counsel for the respondent-Management further submitted that the discretion exercised by the Labour Court should not be interfered in the writ jurisdiction of this Court. In this regard, ld. counsel for the respondent has referred to the decision of the Apex Court in PGI of Medical Education & Research, Chandigarh v. Raj Kumar,4 (2001)2 S.C.C. 54. Regarding the second contention of the petitioner learned counsel for the respondent Management submitted once the termination of the services of the petitioner was justified by the evidence led by the respondent-Management before the Labour Court, the termination would be revert back to the date of order of the termination and not from the date of the passing of award. In this regard, learned counsel for the respondent relied upon the decisions of the Apex Court in R. Thiruvirkolam v. Presiding Officer ,5 (1997)1 S.C.C. 9 and Punjab Diary Development Corporation Ltd. v. Kala Singh,6 (1997)II L.L.J. 1041, wherein the decision rendered in Gujarat Steel Tubes Ltd. and etc. v. Gujarat Steel Tubes Mazdoor Sabha and Ors. (supra) has been distinguished and held- to be not laying down the correct law. v. Gujarat Steel Tubes Mazdoor Sabha and Ors. (supra) has been distinguished and held- to be not laying down the correct law. In view of the aforesaid submission, ld.counsel for the respondent-Management submitted that there is no merit in the instant writ petition filed by the petitioner and the same is liable to be dismissed. 6. I have heard the rival contentions raised by learned counsel for the parties and have perused the record of the case. 7. On issue No. l it was held by the Labour Court that the domestic enquiry conducted by the respondent-Management was invalid. However, the respondent-Management led evidence to justify its action of terminating the services of the petitioner. The petitioner was afforded opportunity to rebut the evidence led by the respondent. After considering the respective evidence of the parties, the labour Court appears to have come to the conclusion that the termination of services of the petitioner was justified. However, by taking a lenient view in the matter and keeping in view the amount of embezzlement involved in the case, the petitioner was ordered to be reinstated with continuity of service without back wages. It is always open for the management to either rely upon the domestic enquiry or to justify its action by leading evidence before the Labour Court. Whether it is a case of no enquiry or a defective enquiry, it makes no difference. Even after holding the domestic enquiry as invalid by the Labour Court, the employer/management has a right to adduce evidence to justify its action of termination of the services of the workman. It is not incumbent upon the Labour Court to hold the termination of services of a workman as illegal in case it is found that the domestic enquiry conducted by the employer/management was defective. In Bharat Sugar Mills Ltd. v. Jai SinghJ (1961)11 L.L.J. 644 (S.C.), the Honble Apex Court has rejected the contention of the workman that once the Tribunal/Labour Court has held the domestic enquiry to be defective, it has no option but to set aside the order of dismissal. It has been further held by the Apex Court that the Tribunal/Labour Court has to decide for itself on the evidence adduced whether the charges have really been made out or not. It has been further held by the Apex Court that the Tribunal/Labour Court has to decide for itself on the evidence adduced whether the charges have really been made out or not. Therefore, I do not find any illegality in the procedure adopted by the Labour Court while allowing the respondent-Management to justify its action of terminating the services of the petitioner by adducing evidence before it. In the instant case, the Labour Court, after considering the evidence led by the parties, seems to have found the order of termination of the services of the petitioner as justified. However, looking into the hardship of the petitioner and by taking a lenient view, the petitioner was ordered to be reinstated with continuity of service, though without back wages. The Labour Court did not grant the back wages to the petitioner, in the peculiar facts and circumstance of the case. Once the Labour Court has exercised its discretion in refusing to grant back wages to the petitioner on the aforesaid factors, it will not be appropriate for this Court to interfere into the discretion exercised by the Labour Court as held by the Apex Court in PGI of Medical Education & Research, Chandigarh v. Raj Kumar (supra). Therefore, I do not find any force in the contention of learned counsel for the petitioner that the Labour Court was not justified to deny back wages to the petitioner. 8. Regarding the second contention of the petitioner that he is entitled at least for the back wages from the date of termination of his service till the date of the award. I am of the opinion that the said contention of the petitioner is also not tenable. It is now well settled that in case of no enquiry or defective enquiry, the employer has a right to sustain his action of dismissal of the delinquent workman before the Tribunal by adducing evidence before it. If before the Tribunal, the employer justifies his action of dismissing a workman, whether he has held no enquiry or the enquiry has been found to be invalid, the dismissal must take place from the date on which the order of dismissal was passed. The decision of the Honble Apex Court in Gujarat Steel Tubes Ltd. and etc. v. Gujarat Steel Tubes Mazdoor Sabha and Ors. The decision of the Honble Apex Court in Gujarat Steel Tubes Ltd. and etc. v. Gujarat Steel Tubes Mazdoor Sabha and Ors. (supra) which was subsequently followed in Des Raj Gupta v. Industrial Tribunal,8 (1991)1 L.L.J. 120, certainly supports the contention raised by the petitioner. However, subsequently the Honble Apex Court in R. Thiruvirkolam v. Presiding Officer, (supra) has held that the observation made in Gujarat Steel Tubess case (supra) relating to the grant of back wages to an employee from the date of the award in case domestic enquiry was held to be invalid, was contrary to the decisions of the earlier Constitution Bench in P.H, Kalyani v. Air France.9 (1963)1 L.L.J. 679 and D.C. Roy v. Presiding Officer, Madhya Pradesh Industrial, (1976) Lab.I.C. 1142. Therefore, the observations made by the Apex Court in Des Raj Guptas case (supra) cannot be treated as an authority on the point. Subsequently, the Honble Apex Court in Punjab Dairy Development Corporation Ltd v. Kala Singh (supra) has expressly over-ruled by the view taken in Des Raj Guptas case (supra) it was held that if the employer had justified his action of dismissing a workman before the Tribunal and if the enquiry is found to invalid even then the dismissal order passed by the employer would relate back from the date of passing of such order; and in such a situation the workman would not be entitled for back wages from the date of dismissal to the date of passing of award. 9. In view of the aforesaid legal position,contention of the petitioner for back wages from the date of dismissal to the date of award passed by the Labour Court cannot be accepted because the Labour Court has not held that the termination of the petitioner was not justified. The finding recorded by the Labour Court is contrary. Though the termination of the petitioner was found to be justified, but he was ordered to be reinstated with continuity in service without back wages by taking a lenient view in the matter by looking into his hardship. 10. In view of the above discussion, I do not find any merit in the instant writ petition filed by the petitioner and the same is hereby dismissed with no order as to costs.