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2011 DIGILAW 1386 (MP)

Vidhyadhar Dubey v. State Industrial Court

2011-12-09

ALOK ARADHE, K.K.LAHOTI

body2011
JUDGMENT 1. This revision petition is directed against order dated 1.7.2011 passed by us in WP No.3270/00 and W.P. no. 6820/00 by which we have decided both the matters finally by a common order. For ready reference we quote para 8 and 9 of the order which reads thus : 8. In Mahendra and Mahindra Ltd. (supra), the Apex Court considering the quantum of punishment held that use of abusive language by the workman to the employer was sufficient for dismissal and such punishment cannot be said to be disproportionate. In M.P. Electricity Board (supra), the Apex Court held that when the punishment awarded is shockingly disproportionate to the charge, only then the Labour Court and the Industrial Court can interfere. Obedience to authority in a workplace is not slavery. When the employee having hit superior officer with tension screw on his back and nose, leaving him with a bleeding and broken nose, in the presence of other employees, it clearly amounted to breach of discipline in the organisation. The Apex Court held that the dismissal of such employee who physically assaulted the superior officer, cannot be said to be disproportionate. In view of the aforesaid, punishment awarded by the disciplinary authority after holding a departmental enquiry could not be said to be disproportionate and the Labour Court and the Industrial Court ought not to have interfered in the matter. But in this case, there are subsequent events of which notice can be taken while deciding these writ petitions. After the order passed by the Labour Court, Vidhyadhar Dubey was reinstated and he is working since last about 6 years and there is no complaint as to misconduct and even during course of hearing, no such grievance was raised by the employer. Apart from this, another matter travelled to the Labour Court in respect of regularisation of such employee and the Industrial Court Jabalupr Bench in Reference Case no. 3/99 MPIR directed regularisation of 16-18 employees. Aforesaid matter travelled to the High Court of M.P. in W.P.no. 883/2004 which was dismissed on 13.2.2006. Writ Appeal no. 134/06 was preferred by the employer Averest Industries Ltd. A Division Bench of this Court considering aforesaid decided the matter and for ready reference, paras 13 and 14 of the order are referred which reads as under: 13. Mr. Rajendra Tiwari and Mr. 883/2004 which was dismissed on 13.2.2006. Writ Appeal no. 134/06 was preferred by the employer Averest Industries Ltd. A Division Bench of this Court considering aforesaid decided the matter and for ready reference, paras 13 and 14 of the order are referred which reads as under: 13. Mr. Rajendra Tiwari and Mr. Sanjay Verma finally submitted that at present there are only 16 TSP employees and out of these one Vidhyadhar Dubey has been dismissed for major misconduct after a legal domestic inquiry and his case is pending in this Court and out of the remaining 15 employees, 11 have deposed before the Industrial Court that they have not accepted the settlement dated 20.10.1999 and four have not come to depose before the Industrial Court and unless these 15 TSP employees comply with Clause 29 of the agreement and the order of this Court dated 30.11.2001 passed in W.P.no. 6948/2000 they cannot be classified permanent. They further submitted that there is no vacancy at the plant at Keymore and the appellant is not in a position to supply extra manpower under the circumstances and hence the appellant should be given an option to compensate the TSP employees by making payment to them under Voluntary Retirement Scheme 14. The settlement dated 20.10.1999 was a result of a bargain between the management and the representative of the employees on the basis of conditions as were prevailing at the time of the settlement and the direction of the Industrial Court for regularisation of the 16 and 18 TSP employees is on the basis of evidence led before the Industrial Court and has not been challenged by the appellant in a writ petition. In the absence of such a challenge, we could only consider whether this direction of the Industrial Court was beyond its jurisdiction and was a nullity and we have held that the direction was within the jurisdiction of the Industrial Court and was not a nullity. Hence, we cannot set aside or modify the direction of the learned Single Judge to regularise the services of the 16 to 18 TSP employees, but the appellant may negotiate a fresh settlement with the concerned employees if it is so advised. 9. Hence, we cannot set aside or modify the direction of the learned Single Judge to regularise the services of the 16 to 18 TSP employees, but the appellant may negotiate a fresh settlement with the concerned employees if it is so advised. 9. In view of the fact that there was a fresh settlement between the management and the employees and except Vidhyadhar Dubey, others were regularised and their orders were affirmed upto the High Court, there is no complaint against vidhyadhar Dubey after his reinstatement since lat 6 years, in these circumstances, when Vidhyadhar Dubey has been reinstated, it would not be appropriate at this juncture to remove him from the employment. He has already completed 55 years of age and is at the fag end of his career. In these circumstances, as a special case, order passed by the industrial Court is modified in following terms: (i) Respondent Vidhyadhar Dubey to file an undertaking before the employer that in future, he shall not repeat any such misconduct and maintain the dignity of the employer and shall not indulge himself in any of the activities of indiscipline. On filing such undertaking, respondent employer shall permit Vidhyadhar Dubey to continue in the employment or if the management still decides not to continue his employment then the management shall make payment of lump sum amount of Rs.1,00,000/-to Vidhyadhar Dubey, so that he may maintain his family, as a special case. (ii) In case, the management decides to continue the service of Vidhadhar Dubey then Vidhyadhar Dubey shall discharge the service as per undertaking, as directed hereinabove. 2. Learned counsel for the petitioner submitted that the condition as enumerated in para 9.1 of the order is harsh and the option given to the employer in respect of payment of lump sum amount of Rs.1,00,000/-may be deleted. It is submitted that since the order passed by the labour Court, the petitioner herein was working with the respondents and no incidence has been reported since the reinstatement in respect of any misconduct on the part of the petitioner. It is further submitted by Shri Dhagat that the undertaking as directed by this Court was furnished before the respondents. 3. From the perusal of the entire petition, we do not find any such averments in respect of filing of the undertaking before the respondents. It is further submitted by Shri Dhagat that the undertaking as directed by this Court was furnished before the respondents. 3. From the perusal of the entire petition, we do not find any such averments in respect of filing of the undertaking before the respondents. Apart from this, from the perusal of the order we find that in para 8 a special finding was recorded in respect of misconduct against the petitioner and we were inclined to allow the writ petition filed by the petitioner and the order passed by the labour court was to be set aside, but considering this peculiar fact that the petitioner Vidhyadhar Dubey was reinstated and was working since last six years, the aforesaid options were given to both the parties, to the petitioner and to the respondents. However, misconduct on the part of the petitioner was found which is finding of fact. 4. In these circumstances, we do not find any error apparent on the face of the record in the order dated 1.7.2011 for allowing this present review petition. This review petition is found without merit and is dismissed with no order as to costs.