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Madhya Pradesh High Court · body

2007 DIGILAW 849 (MP)

M. P. State Electricity Board v. Ram Singh Mesram

2007-08-07

R.K.GUPTA

body2007
ORDER Counsel for the respondent No. 1 Shri Sanjay Verma has not filed the return, therefore, the case is heard without return. 2. The petitioner by way of filing this petition before this Court has challenged the order passed by the Labour Court on January 16, 2003 (Annexure- P-l). By this order the Labour Court has directed for the reinstatement of the respondent No.1 without any back wages. Against the said order the petitioner preferred an appeal under Section 65 of the M. P. Industrial Relations Act, 1960. The State Industrial Court by an order dated January 25, 2005 (Annexure-P-2) dismissed the said appeal. Consequently the order passed by the 5 State Labour Court has been upheld. 3. The facts leading to the present case are that the respondent/employee was issued a charge-sheet (Annexure-P-2) wherein four charges against the respondents were framed. The incident is dated December 21, 1994. 4. The charges against the respondent were that in a live line of 11 KV the respondent in a drunken state worked in the said line. It is also a charge that unauthorized the respondent/employee worked in the said live line and received the injuries which was in breach of safety provisions. 5. A Departmental Enquiry was also initiated against the petitioner by appointing an Inquiry Officer. On the date when the inquiry was fixed i.e. June 20, 1990, the respondent No. 1 admitted the said charges by admitting the same and the question and answer before the inquiry officer is reproduced as under :- "Vernacular matter omitted. " 6. The Disciplinary Authority thereafter on the basis of admission considered the report submitted by the inquiry officer, wherein the respondent No.1 /employee was found guilty of the charges. The disciplinary authority passed an order of punishment on June 29, 19903, (Annexure-P-6) by which a penalty of dismissal from services was imposed. 7. The petitioner filed a case before the La60ur Court challenging the dismissal, and the said case was withdrawan by the petitioner by 41 order dated January 24, -2000. The said order has been filed by the respondent along with an application for additional documents to be taken on record. The said case was withdrawn on the ground that the respondent/employee 4 was given assurance that he will be taken back in service and for this reason the case was withdrawn. 8. The said order has been filed by the respondent along with an application for additional documents to be taken on record. The said case was withdrawn on the ground that the respondent/employee 4 was given assurance that he will be taken back in service and for this reason the case was withdrawn. 8. On an appeal preferred by the respondent/employee the Appellate Authority passed an order on September 23, 2000 (Annexure-P-5), whereby the Appellate Authority directed- that in place of dismissal the respondent/employee shall be inflicted a penalty of retirement on the ground that he has received 18% of permanent disablement, therefore the respondent/employee was retired from the services of the petitioner. 9. The respondent/employee preferred again an application to the Labour Court. The Labour Court framed three issues. The first issue was whether order dated September 23, 2000 is legal and proper. The issue No.2 was whether misconduct is proved and third issue was related to relief and cost before the Labour Court. 10. The necessary evidence was adduced by the parties. The Labour Court in paragraph of its judgment came to the conclusion that the certificate Exhibit P-4 has been filed, in the same the respondent/employee has been found to be perfect for duty even though 18% of permanent disability has been referred to. The Labour Court held that the said certificate was issued to the petitioner by Medical Board. The Labour Court further held that the petitioner before the Court has not produced any evidence that the respondent/employee is not able to work which he was previously performing, therefore merely because 18% of permanent disability is found, yet the respondent/ employee could not have been retired from the services of the Board and action as such is not legal and justified. On this basis the Labour Court held that even though the respondent employee has admitted the charges and the charges against the respondent/employee have been found proved but the order retiring the petitioner dated September 23,2000 cannot be said to be legal and justified• and quashed the order. 11. The petitioner preferred an appeal to the State Industrial Court and the Industrial Court considered the judgment passed by the Labour Court. The appeal preferred by the present petitioner (Employer) has been dismissed. The arguments of the respondent/employee have been referred in paragraph of the judgment passed by the State Industrial Court. 12. 11. The petitioner preferred an appeal to the State Industrial Court and the Industrial Court considered the judgment passed by the Labour Court. The appeal preferred by the present petitioner (Employer) has been dismissed. The arguments of the respondent/employee have been referred in paragraph of the judgment passed by the State Industrial Court. 12. Before the State Industrial Court it was the case of the respondent/employee that since Ai; the respondent/employee has received the injuries while performing the work of the employer, therefore, the respondent/employee cannot be punished, because the respondent/ employee sustained the injuries during the It course and arising out of employment. 13. The State Industrial Court considered the said question in paragraph of its judgment and came to the conclusion that it is clear that the respondent/employee has sustained the injuries. The State Industrial Court also came to the conclusion that the injuries were sustained by the respondent/employee during the course and arising out of employment. The State Industrial Court further came to the conclusion that no medical evidence was examined that the respondent/employee in a drunken state was performing the work as the same was not mentioned in Exhibit P-5. The State Industrial Court also considered that no medical evidence was examined that the respondent/employee on the date of accident was in a drunken state when he was performing the work. The State Industrial Court relied upon the judgment passed in Kunal Singh v. Union of India, AIR 2003 SC 1622 : (2003) 4 SCC 324 : 2003 III LLJ 735, Union of India v. Sanjay Kumar Jain, AIR 2004 SC 4139 : (2004) 6 SCC 708 : 2004 III LLJ753 and on the basis of the said judgment the State Industrial Court came to the conclusion that if an employee sustains the injuries during the course and arising out of employment and receives permanent disability then the respondent by way of any penalty cannot reduce the rank of such employee and the employee as such would be treated to be a protected workman. On the basis of the same the Industrial Court came to the conclusion that the employee was not entitled to be punished. Consequently the judgment passed by the Labour Court was upheld and the appeal preferred by the petitioner has been dismissed. On the basis of the same the Industrial Court came to the conclusion that the employee was not entitled to be punished. Consequently the judgment passed by the Labour Court was upheld and the appeal preferred by the petitioner has been dismissed. The Industrial Court also came to the conclusion that as the respondent/employee has 50 admitted the charges, and the Labour Court since has not awarded the back wages, therefore, the order passed by the Labour Court is appropriate. 14. The learned counsel appearing on behalf of the petitioner submitted that the Labour Court has recorded a finding that misconduct as enumerated (Annexure-P-3) is proved that in a drunken state the respondent/employee worked unauthorized in a live line of 11 KV resulting into the accident and the injuries by way of his admission to the charge. The admission was sufficient to show that the respondent/employee was in a drunken state and has worked unauthorizedly in a live line, therefore, both the Courts were, not, justified in holding that no legal evidence was adduced by the employer that the respondent/employee in a drunken state was performing his work, therefore, on this ground it was also submitted that there was no material filed before the Labour Court that the respondent/employee has sustained 18% permanent disability is still fit to perform the work. A person with 18% permanent disability cannot function on the post on which the respondent/employee was employed. It is also submitted by him that the respondent/employee has also not adduced any evidence in the Court below that he was able to perform his natural work which he was performing prior to the date of accident and the 18% permanent disability shall have no adverse effect on the working and performance of the respondent/employee. 15. Learned counsel appearing on behalf of the respondent vehemently relie9 upon the judgment passed by the Apex Court in Cork Industries, Madras v. I Additional Labour Court, Madras and Another AIR 1984 SC 545 : 1992 LLJ 384 , Bhavani Metal Works v. Pandurang R. Sawant and Others 1994 LLJ 711. 16. On that basis it is submitted by the learned counsel for the respondent that the alleged misconduct which was committed by the respondent/employee was not in the premises, therefore under no stretch of imagination the respondent/employee -would have been punished. 17. 16. On that basis it is submitted by the learned counsel for the respondent that the alleged misconduct which was committed by the respondent/employee was not in the premises, therefore under no stretch of imagination the respondent/employee -would have been punished. 17. Learned counsel appearing on behalf of the petitioner cited the judgment of single Bench of this Court in Ambuja Cement Easter Ltd. v. Industrial Court Bench, Raipur and Another 2001-III-LLJ (Supp)-1254 and: submitted that this Court while interpreting the Standard Standing Order 12(1)(f) has interpreted the said provision and thereby came to the conclusion that the act which is attributed against the respondent employee must have correlations with the employment in the establishment or the employment of the fellow workmen and officers therein and was totally unconnected with the business of the establishment and had no nexus with discipline within the establishment. The relevant paragraph is reproduced as under :- "The act attributed to the respondent/2 employee did not have any correlation with his employment in the establishment or the employment of the fellow workmen and officers therein and was totally unconnected with the business of the establishment and had no nexus with discipline within the establishment. It was not in the circumstances in which for any act of the complainant employee in the establishment, the respondent employee had reacted in the manner attributed to him. There being thus no nexus and the act having not been committed during working hours in the establishment, the Industrial Court has rightly observed that it did not constitute misconduct under the SSO empowering the employer to take disciplinary action. The incident was totally unconnected with the employment and as rightly contended by the learned counsel for the respondent/ employee by reference to the decision of the Supreme court in Mohd. Yunus v. Mohd, Mustagim (supra), since the supervisory jurisdiction under Article 227 of the Constitution is to see whether subordinate, Tribunal has acted within bounds of its jurisdiction, the conclusions drawn by the Industrial Court on due appreciation of all facts, do not call for any interference in exercise of power under Article 227 of the Constitution of India. The petition W. P. No. 3007/1999, therefore deserves to be dismissed." 18. On this basis it is submitted that the respondent/employee climbed the tower in drunken state, wherein live line of 11 KV was installed. The petition W. P. No. 3007/1999, therefore deserves to be dismissed." 18. On this basis it is submitted that the respondent/employee climbed the tower in drunken state, wherein live line of 11 KV was installed. This has the connection with the work as respondent/employee worked at the place where he was not authorized to work. The submission as such on the basis of the said judgment has to be accepted. 19. It is also to be seen that Clause 12-F of the Standard Standing Orders prescribes the misconduct, drunkenness, riotous or disorderly behaviour, during working hours at the undertaking. The later part of the said clause further states wherein the sentence starts with work conduct, endangering the life or safety of any person, intimidation, physical duress, or any act subversive of discipline are not referable to the misconduct during the working hours at the undertaking because these words are with reference to a misconduct or drunkenness riotous or disorderly behaviour I but a later part of the misconduct wherein any act subversive of discipline but the word during the working hours at the undertaking is not referable to the conduct endangering the life or safety of any person. 20. The case of the respondent/employee before the State Industrial Court was that since the injuries have been sustained by the respondent/employee during the course and arising out of employment, therefore under the provisions of the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act. 1996, the petitioner should not have been punished or retired due to the injuries sustained. This argument has been considered by the State Industrial Court in paragraph of its judgment. 21. Now before this Court just a reverse argument is being advanced. The learned counsel appearing on behalf of the respondent submitted that the injuries since have not been sustained in the premises, therefore, no punishment could have been awarded. This is, however, not understood as to how this stand had been taken of the respondent/employee before the Courts below and also the just opposite stand has been taken before this Court. The learned counsel appearing on behalf of the respondent submitted that the injuries since have not been sustained in the premises, therefore, no punishment could have been awarded. This is, however, not understood as to how this stand had been taken of the respondent/employee before the Courts below and also the just opposite stand has been taken before this Court. In Glaxo Laboratories (1) Ltd. v. Presiding Officer, Labour Court, Meerut and Others AIR 1984 SC 505 : (1984) 1 SCC 1 : 1984-1-LLJ-16, the question was before the Apex Court that if a particular misconduct has been provided under the Standing Orders then it should be construed in the manner in which it is provided in the statute. 22. While deciding the said ratio the Apex Court came to the conclusion that since the misconduct which is provided in the standing orders of the employer if an employee. "committed within the premises of the' establishment or in the vicinity thereof' then any misconduct committed anywhere irrespective of the time or place where and when it is committed, cannot be apprehended to be misconduct within the meaning of the standing• orders. Merely because it has some impact on the peaceful atmosphere in the establishment, the judgment which has been relied upon by the learned counsel for the respondent shall have no " relevance in the light of the findings recorded by the State Industrial Court in paragraph 4 of its judgment where the Industrial Court has come to the conclusion by accepting the argument of the respondent/employee that the workman has sustained the injuries during the course and arising out of employment. It was the argument of the learned counsel appearing on behalf of the respondent/employee. 23. Now before this Court a new scenario and the case cannot be developed by saying that the injuries were not sustained by him in the premises and have no nexus with the employment. Thus, the judgment which has been relied upon, has no application. 24. It was the argument of the learned counsel appearing on behalf of the respondent/employee. 23. Now before this Court a new scenario and the case cannot be developed by saying that the injuries were not sustained by him in the premises and have no nexus with the employment. Thus, the judgment which has been relied upon, has no application. 24. Similarly the counsel for the respondent also relied upon the judgment passed by the High Court, Madras in Cork Industries, Madras v. Additional Labour Court, Madras and Another 1992-1-LLJ-384 (Mad), Bhavani Metal Works v. Pandurang R. Sawant and Others 1994-II-LLJ (Suppl)-711 (Bom), wherein the question with regard to the misconduct as defined under the standing order was under consideration and High Courts in the aforesaid two judgments placed its reliance on the judgment passed by the Apex Court and came to the conclusion that once the misconduct is defined then the same has to be strictly interpreted. 25. Keeping in view the argument submitted by the learned counsel appearing on behalf of the respondent/employee in the Court to below that the injuries have been sustained by him during the course and arising out of employment, then the question with regard to the premises or vicinity shall have no application particularly when the place of work where the injuries are sustained i.e. 11 KV live line where the respondent/employee unauthorizedly has sustained the injuries resulting into 18% permanent disability, belongs to the employer. The employer is an undertaking which is indulging into the activities of generating the electricity transmission and its distribution. The Transmission and distribution through electric poles shall also be the premises and if the workman in a drunken state and without any authority and without asking any senior officer to work at a particular place on his own performs the work then this will be the misconduct within the meaning of the Standing Orders under clause 12( 1) D and F of the , Standing Orders wherein the said clauses defined the major misconduct which reads as under :- "(D) Wilful disobedience of any lawful or reasonable order of a superior involving safety of any person or property or other matter having an adverse effect upon the work or wages of other employees. (E) drunkenness, riotous •or disorderly behaviour during working hours at the undertaking or conduct endangering the life or safety of any person, intimidation, physical duress, or any act subversive of discipline." 26. The respondent/employee wilfully without receiving any order or instruction has worked in a area where he was not posted to work, he has worked in the area where he was not authorized to work in a live line of 11 KV. 27. For the reasons stated hereinabove the argument so submitted by the learned counsel for the respondent cannot be accepted. The Labour Court in the present case also has arrived at a conclusion on the basis of the admission of the employee that the misconduct is found proved against the respondent/ employee. The finding in this regard in paragraph 10 and 11 passed by the Labour Court (Annexure-P-1) shows that the injuries: were sustained by the workman and the said workman has accepted the charges. The charges had also been referred hereinabove which are severe in nature. 28. Under the circumstances the Labour Court after having once arrived at a conclusion that the misconduct was proved then the Labour Court under the circumstances should not have awarded the reinstatement keeping in the severe; nature of misconduct. The State Industrial Court adopted a typical approach in the matter, the State Industrial Court in paragraph has given the reasoning that the employer has not examined any Doctor to show that the workman: was in a drunken state on the date when the accident occurred. It was not required to be done because of the admission, on the part of the employee. The State Industrial Court was to look into the admission and once the employee has admitted the charges then there was no question of examining Doctor either before the Labour Court or in the inquiry. 29. The next question is with regard to the reasoning given by the Labour and the State• Industrial Courts are that it was the case of 18% permanent disability, therefore the employee is entitled to the benefit of the provisions of Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1996 and for this the State Industrial Court referred to the judgment passed by the Apex Court in Union of India v. Sanjay Kumar Jain AIR 2004 SC 4139 : (2004) 6 SCC 708 : 4 2004-III-LLJ-753. In the judgment, the Industrial Court has referred the citation from Kunal Singh v. Union of India, AIR 2003 SC 1623 : (2003) 4 SCC 524 : 2003-III-LLJ-735. This was the case where the Apex Court was 5 considering the question where an employee developed the disabilities while performing the work and received the permanent disability. The Apex Court came to the conclusion that the employee cannot be through out of employment as the disabilities were developed by him during the course of employment. The Apex Court in fact was not considering the question if an employee in a drunken state unauthorizedly performed the work and under these circumstances commits the misconduct and if an employee suffers with the injuries in the nature of permanent disablement then whether provision of the Act "1996" as above such judgment would have any application in the facts and circumstances of the present case. 30. I am of the view that the judgment of the Apex Court (supra) shall have no application where the employee was charge-sheeted that he has worked in a drunken state in live line of 11 KV and worked unauthorizedly and received the injuries and admitted his guilt then thereafter the order of dismissal as penalty was imposed then how the said judgment shall apply in the facts and circumstances of the case to treat the workman as a protected workman to be a protected workman under the provisions of 1996 Act. Thus the approach of the State Industrial Court and the Labour Court cannot be treated to be the approach in accordance with the law. 31. The question next arises for consideration is that if an employee has sustained the permanent disability of 18% it was for the employee to prove that he is able to perform the work, inspite of there being 18% of permanent disability. No evidence of any nature i.e. Doctor, the respondent/employee has adduced to show that the respondent/employee had been able to perform the work in the same manner with the same efficiency in which he was performing prior to the date of accident. The employee as such has failed to discharge his burden as no medical evidence was examined. 32. Under the circumstances it cannot be said that the employer was not justified in directing for the retirement of the employee. 33. The employee as such has failed to discharge his burden as no medical evidence was examined. 32. Under the circumstances it cannot be said that the employer was not justified in directing for the retirement of the employee. 33. Counsel appearing on behalf of the respondent submitted that the petitioner belongs to a tribal area and is Scheduled Tribe therefore, it was in the habit of the respondent employee to consume the liquor, therefore even though he was working in drunken state in live line of II KV yet the punishment was harsh and excessive and the employee inspite of there being 18% of permanent disability is entitled to the benefit to remain in service. The said• submission is also considered. Merely because the respondent/ employee belongs to ST category and was from a tribal area that by itself will not be a ground to absolve him from his liability of performing the duties efficiently.• The respondent/employee was working on live line of 11 KV unauthorizedly and also in a different area where he was not deputed to work. This itself shows that the continuance of such an employee keeping in view of the nature of work and also the nature of the activities performed by the petitioner employer he is not fit to be retired in services because of his habit of consuming liquor as he belongs to tribal area as argued by the counsel. 34. For the reasons stated hereinabove I do not find that both the Courts below have exercised their jurisdiction in accordance with law and also have exceeded their jurisdiction and authority by deciding the case. 35. Accordingly petition stands allowed and the impugned order Annexure P-1 and P-2 passed by the Labour and Industrial Courts are quashed. 36. No other point is argued.