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2009 DIGILAW 345 (PNJ)

Hardwari Lal v. Hindustan Machine Tools

2009-02-17

A.N.JINDAL, UMA NATH SINGH

body2009
Judgment UMA NATH SINGH, J. 1. This L. P. A. by the writ petitioner arises out of a judgment dated February 28, 2007 passed by a learned single Judge dismissing c. W. P. No.15995/2000. 2. It appears that the appellant was working as Inspector-A (WG-3) of Section No.1150 in the Hindustan Machine Tools Limited (now HMT Ltd.) - respondent No.1. On august 17, 1994, he was involved in a criminal case for theft vide FIR No.57 dated August 17, 1994 registered at Police Station, Pinjore under sections 380/411 of the Indian Penal Code. It also appears that the appellant was tried upon for the said charge and suffered an order of conviction vide judgment dated September 17, 1999 passed by a Judicial Magistrate, panchkula and he was visited with a punishment of confinement till the rising of court and also a fine of Rs.3000.00 . Appellant hardwari Lal challenged the judgment of conviction and sentence in an appeal and finally earned acquittal in the Appellate Court. It also appears notwithstanding the outcome of trial, a departmental proceeding was initiated and concluded against the appellant, however, the order of punishment of dismissal from service was passed only after the conclusion of criminal trial, but during the pendency of appeal. 3. Assailing the order of punishment imposed in the departmental proceeding, wherein, the appellant was proceeded ex parte, he filed the writ petition, as aforesaid, but the learned single Judge while placing reliance on the judgment of Hon ble the Apex Court in Ajit kumar Nag V/s. General Manager, Indian Oil corporation Limited and Others 20q5-III-LLJ-1129 (SC) dismissed the writ petition. 4. We have heard learned counsel for parties and perused the appeal record. 5. Learned counsel for the appellant submitted that the departmental proceedings were concluded exparte during the pendency of criminal trial and the punishment of dismissal from service was imposed during the pendency of criminal appeal. This is also his submission that the appellant served the organisation for over thirty years and this appears to be a case of false implication to settle some personal scores. This is also a submission of learned counsel that the appellant has three unmarried daughters with no other source of income and this appeal be treated as a mercy petition. 6. This is also a submission of learned counsel that the appellant has three unmarried daughters with no other source of income and this appeal be treated as a mercy petition. 6. On the other hand, learned senior counsel for respondent-HMT Limited has very fairly made his submissions in line with the ratio of a three Judge Bench judgment of Hon ble the Apex Court in Workmen of Bharat fritz Werner (P) Ltd. V/s. Bharat Fritz Werner (P) Ltd. , and Another AIR 1990 SC 1054 : (1990) 3 SCC 565 : 1990-II-LLJ-226, Paras 15, 16 and 17 of the judgment, being relevant ones on reproduction read as at p.232 of LLJ: "15. . . . . . In view of the said finding of the high Court, we are of the view that the question with regard to the validity of the report Of the Enquiry Officer is of little significance and the only question which needs to be examined is whether in view of the findings recorded by the Appellate bench of the High Court that these five workmen are guilty of misconduct, the High court was justified in not awarding the punishment of dismissal and in directing reinstatement of these workmen with one half of the back wages. In this regard, it may be stated that after considering the evidence the Appellate Bench of the High Court arrived at the following conclusion: "the very fact that a large contingent of police had arrived at the time when the workmen were inside the Presidents room itself shows that there was a lot of disturbances in the factory. The workers who went inside the Presidents room perhaps were responsible for aggravating the situation. They were in an aggressive mood. They threatened the President with dire consequences if the notice was not removed. They with the common intention confined the President to his room. They came very close to him with gesticulations and fisted hands. They did not go out in spite of request. They shouted stating that the president should not go out. They stayed there till the President gave instructions to mr. Keshy to remove the notice. Even a little time prayed for by the President and brachtel for discussion in the matter was not conceded by the Workmen. They undoubtedly wrongfully confined him to his room, threatened him with dire consequences. They shouted stating that the president should not go out. They stayed there till the President gave instructions to mr. Keshy to remove the notice. Even a little time prayed for by the President and brachtel for discussion in the matter was not conceded by the Workmen. They undoubtedly wrongfully confined him to his room, threatened him with dire consequences. No recruitment as per the notice was going on at that moment. The Union did not write any letter asking the management to withdraw the notice. That was a right royal way of dealing with such matters. Nothing prevented the Union to issue such a notice and try to bargain with the Management. It was wholly unnecessary for the Workmen or the office bearers of the Union to storm the presidents room and threaten him with dire consequences. " "fortunately, the workers in this case, did not attack any officer of the Management, although they did everything short of attacking the President. Perhaps there was a silver lining in the dark clouds. They are, however, guilty of wrongfully confining the president and compelling him to withdraw the notice. For these two acts of misconduct, we do not think that the said five workmen deserve extreme penalty of dismissal. There were other workmen too, who went to the office of the President and participated in the terrorising acts. All of them might have acted at the instigation of somebody or at the spur of the moment without knowing the consequences. They have no doubt acted badly but not so bad as to warrant dismissal. It seems to us, therefore, that the dismissal is unjustified and they shall be taken back to duty, but with one half of the back wages. " The aforesaid findings recorded by the High court show that: (i) these workmen had gone inside the presidents room in an aggressive mood; (ii) they threatened the President with dire consequences if the notice was not removed: (iii) they confined the President to his room and came very close to him with gesticulations and fisted hands; (iv) they did not go out in spite of request and shouted stating that the President should not go out; and (v) they stayed there till the President gave instructions to Mr. Keshy to remove the notice. 16. Keshy to remove the notice. 16. The learned Judges were of the view that the said acts of misconduct were not such as to deserve extreme penalty of dismissal and have directed that these workmen should be taken back to duty but with one half of the back wages. The learned Judges considered denial of one half of the back wages to the workmen as a sufficient punishment for the acts of misconduct committed by them. 17. The aforesaid directions have been given by the High Court while exercising the powers which are exercised by the Industrial tribunal in view of the joint memo dated june 22, 1984 submitted by both the parties, whereby, it was requested that the Court may decide the entire matter without remitting it to the Tribunal and grant appropriate relief finally in accordance with law. Moreover, in view of the provisions contained in Sec.11-A of the Act, which empowers the Industrial Tribunal to go into the question whether the order of discharge or dismissal passed against a workman is justified or not and permits the Tribunal to set aside the order of discharge of dismissal as the circumstances of the case may require, it was open to the High Court to consider what would be adequate punishment for the misconduct found to have been committed by these workmen and take the view that the acts of misconduct found proved against these five workmen were not such as to warrant dismissal and denial of one half of the back wages for the period of about six years was adequate punishment for the misconduct found to have been committed. We do not find any infirmity in the aforesaid view expressed by the Appellate Bench of the High Court. The question which still remains to be considered is whether in the facts and circumstances of the case, the appellate Bench of the High Court was justified in directing reinstatement of these five workmen. " (Emphasis supplied by us) 7 Learned senior counsel submitted that following the ratio of judgment, punishment of dismissal awarded in the instant case can be treated as termination of appellant from service and thus, a direction can also be given to the respondent Company to consider appellants case for granting him all the retiral benefits. 8. " (Emphasis supplied by us) 7 Learned senior counsel submitted that following the ratio of judgment, punishment of dismissal awarded in the instant case can be treated as termination of appellant from service and thus, a direction can also be given to the respondent Company to consider appellants case for granting him all the retiral benefits. 8. In view of all the aforesaid as also the fact that the appellant is placed in such circumstances that the impugned order needs to be interfered with, we allow this LPA to the extent of treating the punishment of dismissal visited on the appellant as termination with a direction to the respondent Company to grant the appellant, all the retiral benefits, including half back-wages and other emoluments in terms of the relief granted in the aforesaid judgment.