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Uttarakhand High Court · body

2012 DIGILAW 474 (UTT)

Anil Kumar Saxena v. District Magistrate Nainital

2012-08-09

TARUN AGARWALA

body2012
JUDGMENT Tarun Agarwala, J. 1. Heard Sri M.C. Kandpal, the learned Senior Advocate assisted by Sri S.S. Chaudhary, the learned counsel for the petitioner and Sri C.K. Sharma, the learned counsel for the respondents-company. 2. The petitioner was appointed as an Accounts Clerk in the year 1976 in the respondents sugar factory by an order of 1.10.1978. His services were terminated, against which, the petitioner raised an industrial dispute and the award was given directing reinstatement with continuity of services. This award was challenged by the employers but during its pendency the petitioner was reinstated on 31.3.1981 without prejudice to the rights of the employers. In 1986, one Sri C.P. Srivastava was appointed as an Accounts Clerk who was given promotion as an Assistant Accountant Grade-I on 19.3.1991. This became the genesis of the present dispute. The petitioner raised an industrial dispute which was eventually referred for adjudication to a Labour Court being Adjudication Case No. 9 of 1993. The terms of the reference order was:- "Whether the employers were justified in not promoting the workman petitioner as an Assistant Accountant Grade-I? If not, to what relief the petitioner is entitled to?" 3. During the pendency of the adjudication before the Industrial Tribunal, the petitioner committed misconduct and was suspended. A charge-sheet was issued to him on 11.2.1993, 15.2.1993 and 2.3.1993. Inspite of the service of the charge-sheet, no reply was given. Consequently, an Inquiry Officer was appointed who also issued a notice and, inspite of the receipt of the notice, the petitioner did not come forward in his defence. Consequently, the inquiry proceeded exparte and an exparte inquiry report was submitted on 15.6.1993. Based on the inquiry report, a show cause notice dated 6.6.1993 was issued by the disciplinary authority to show cause. Inspite of the issuance of the show cause notice and, its receipt, the petitioner did not submit any reply. Accordingly, an order dated 22.6.1993 was passed terminating the services of the petitioner. In this order, the disciplinary authority clearly indicated that since another dispute related to the present dispute was pending adjudication before the Industrial Tribunal, one month's wages in lieu of the notice was paid to the petitioner as provided u/s. 6-E (2) (b) of the U.P. Industrial Disputes Act. Simultaneously, the employer also moved an application before the Industrial Tribunal where Adjudication Case No. 9 of 1993 was pending for approval of their action. Simultaneously, the employer also moved an application before the Industrial Tribunal where Adjudication Case No. 9 of 1993 was pending for approval of their action. 4. The petitioner, being aggrieved by the order of the termination, filed the present writ petition before the Allahabad High Court questioning the validity and legality of the termination order dated 22.6.1993. Upon the creation of the High Court of Uttarakhand, the matter was transmitted to this Court. 5. During the pendency of the writ petition, the application of the employer for approval of their action u/s. 6-E (2) (b) of the Act was also decided by the Industrial Tribunal by an order dated 22.12.2003. By an another award of the Industrial Tribunal dated 22.2.2003 i.e. of the same day, the Adjudication Case No. 9 of 1993 was also decided against the petitioner. The Industrial Tribunal in separate orders approved the action of the employer in terminating the services u/s. 6-E (2) of the U.P. Industrial Tribunal Act and by an another order of the same date declined to grant relief in favour of the petitioner with regard to his promotion on the post of Assistant Accountant Grade-I. It transpires that the petitioner filed a review application which was rejected by an order dated 30.9.2004. The petitioner, thereafter, filed an amendment application before this Court praying that the orders dated 22.12.2003 and the review order dated 30.9.2004 be quashed. The amendment application was allowed and the prayers were incorporated. 6. In the light of the aforesaid, the Court has heard Shri M.C. Kandpal, the learned Senior Counsel assisted by Mr. S.S. Chaudhary, Advocate for the petitioner and Shri C.K. Sharma, the learned counsel for the respondents at some length. 7. The learned Senior Counsel contended that the petitioner filed an application 27-D praying that his written evidence as per the provision of Order 19 Rule 2 of the C.P.C. may be taken on record and that the petitioner was free to be cross examined by the employers as per the provision of Order 19 Rule 2 of the C.P.C. The learned counsel contended that this evidence was crucial for a decision in the case but the said application was arbitrarily rejected by the trial court against which review applications were filed which also met the same fate. The learned counsel for the petitioner submitted that such evidence being rejected was wholly arbitrary and against the provision of C.P.C. and was also against the principles of natural justice. It was urged that if the evidence was taken on record, the decision of the Tribunal would have been something else. In the light of the aforesaid, the learned counsel for the petitioner submitted that the orders of the Industrial Tribunal allowing the application of the employer under 6-E (2) (b) of the U.P. Industrial Tribunal Act as well as the award of the Industrial Tribunal rejecting the claim of the petitioner was wholly erroneous and was liable to be set aside. 8. Having heard the learned counsel for the petitioner at some length and, upon a perusal of the application 27-D and the subsequent review applications as well as the orders of the Industrial Tribunal, the Court finds that the said application 27-D basically related to the claim of the petitioner being promoted on the post of Assistant Accountant Grade-I and that the written evidence did not relate to the merit and demerit of the miscellaneous case filed u/s. 6-E (2) (b) of the Act, namely, as to whether the approval of the action of the employer was required to be given or not by the Tribunal. 9. In the light of the aforesaid, the Court is required to consider as to whether the order of the employer dated 22.6.1993 by which the petitioner's services were terminated was rightly approved by the Tribunal or not by its order of 22.12.2003. On this aspect, the Court finds that no evidence whatsoever has been led by the petitioner before the Inquiry Officer or before the Industrial Tribunal nor any such evidence has been filed before this Court to indicate that the action of the employer was malafide or was arbitrary or the action taken by the employer was not in consonance with the provision of Section 6-E (2) (b) of the U.P. Industrial Disputes Act. Further, the Court finds that no evidence has been filed by the petitioner before the Tribunal to indicate that the action of the employer in terminating the services of the petitioner was violative of provision of Section 6-E (2) (b) of the U.P. Industrial Disputes Act. 10. Further, the Court finds that no evidence has been filed by the petitioner before the Tribunal to indicate that the action of the employer in terminating the services of the petitioner was violative of provision of Section 6-E (2) (b) of the U.P. Industrial Disputes Act. 10. No doubt, Adjudication Case No. 9 of 1993 was pending before the Industrial Tribunal with regard to the non promotion of the petitioner on the post of Assistant Accountant Grade-I. During the pendency of this adjudication case, the employers had taken the action to terminate the services of the petitioner by an order dated 22.6.1993. The question to consider is, whether the action taken by the employer was justified and was rightly approved by the Tribunal or not? For facility, the provision of Section 6-E (2) of the U.P. Industrial Disputes Act, 1947 is extracted hereunder:- "6-E (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute:- (a) Alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding. (b) For any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer." 11. A perusal of the aforesaid provision would indicate that during the pendency of any proceeding in respect of any Industrial Tribunal, the employer may in accordance with its standing orders for any misconduct not connected with the original dispute, discharge or punish, whether by dismissal or otherwise to a workman subject to the condition that at the time of such discharge, the workman would be paid one month's wages and simultaneously an application would be filed before the Industrial Court where the dispute of the workman is pending for approval of the action taken by the employer. 12. In the present case, the Court finds that a bank draft of one month's wages was given to the petitioner which is not disputed. 12. In the present case, the Court finds that a bank draft of one month's wages was given to the petitioner which is not disputed. The Court also finds that the employer had filed an application before the Industrial Tribunal for approval of the action taken by the employer u/s. 6-E (2) (b) of the U.P. Industrial Disputes Act. 13. In the light of the aforesaid, the Court finds that the procedure evolved u/s. 6-E (2) (b) of the Act was followed by the petitioner. 14. This leads to the second question, namely, as to whether the action taken by the employer was justified and whether the approval was rightly granted by the Tribunal. The Court finds that inspite of the issuance of the charge-sheet, which was duly served upon the workman, no reply was given. The Inquiry Officer also issued a notice and gave several opportunities to the petitioner to defend himself and, inspite of the receipt of the notice, the defendant chose not to appear before the Inquiry Officer. The disciplinary authority, upon the receipt of the inquiry report, also issued a show cause notice which was duly served, inspite of which, the petitioner did not appear nor filed any reply. As a result of the conduct of the petitioner for which no plausible explanation has been filed before this Court and in the light of the fact that the charges stood proved, the action of terminating the services of the petitioner was passed by the employer. The Tribunal, while considering this aspect, also found that no evidence or objection has been filed by the petitioner before the Tribunal and inspite of the repeated time being granted from 1993 till 2003 i.e. almost 10 years. The Tribunal found that the principles of natural justice was duly adhered to and complied with by the employers and that full opportunity was given to the petitioner to defend himself. 15. In the light of the aforesaid, the court finds that full opportunity was given to the petitioner to defend himself which he did not avail and, in that light, the Tribunal approved the action of the employer. The court, upon due consideration of the aforesaid, finds that the order of the Tribunal approving the action of the employer, does not suffer from any error of law and requires no interference. 16. The court, upon due consideration of the aforesaid, finds that the order of the Tribunal approving the action of the employer, does not suffer from any error of law and requires no interference. 16. This leads to the validity and legality of the award dated 22.12.2003 passed in Adjudication Case No. 9 of 2003, the claim of the petitioner was rejected on the ground that no evidence has been filed to prove his claim that he is entitled to be promoted as an Assistant Accountant Grade-I. In this regard, the Court finds that the petitioner had filed his evidence on an affidavit as per the provision of Order 19 Rule 1 of the C.P.C. which application was numbered as 27-D before the Tribunal. This application was rejected. The orders of the Tribunal on this application is not before the Court but upon a perusal of the award, the Court finds that the petitioner had made several applications over a period of several years for reviewing the order which rejected the application 27-D and all these review applications were rejected by the Tribunal. The Court finds that the action of the Tribunal in rejecting the application 27-D was not in accordance with Rule 21 (c) of the U.P. Industrial Disputes Rules, 1957. For facility Rules, 21 (c) is extracted hereunder:- "Power of Labour Courts, Tribunals and Arbitrators - In addition to the powers conferred by the Act, Labour Courts, Tribunals and Arbitrators shall have same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit, in respect of the following matters, namely:- (a) Discovery and inspection. (b) Granting of adjournment. (c) Reception of evidence taken on affidavit. And the Labour Court or Tribunal or Arbitrator may summon and examine any person whose evidence appears to it/him to be material." Rule 9 of the U.P. Industrial Disputes Rules will also helpful in this regard. Rule 9 of the Rules is also extracted hereunder:- "Evidence - A Board or Labour Court or Tribunal or an Arbitrator may accept, admit or call for evidence at any stage of the proceedings before it and such manner as it may think fit." Rule 9 of the Rules indicates that the Tribunal has been given the power to record evidence at any stage of the proceedings in such a manner as it thinks fit. The words in such manner as it may think fit is of a wide import and takes into its ambit the reception of evidence taken on affidavit. Rule 21 (c) supports what the Court has just indicated, namely, reception of evidence taken on an affidavit which is in consonance with the provision of Order 19 and Rule (1) and (2) of the C.P.C. In the light of the aforesaid, the evidence supplied by the petitioner on an affidavit ought to have been taken on record and should not have been rejected. Since the evidence of the petitioner was rejected, the petitioner was non-suited and his claim was rejected on the sole ground that he had not filed any evidence to support his case with regard to his non promotion and consequently on this short ground, the award of the Tribunal dated 22.12.2003 passed in Adjudication Case No. 9 of 1993 cannot be sustained and is quashed. To that extent, the writ petition is allowed. The matter is remitted back to the Industrial Tribunal where the Adjudication Case No. 9 of 1993 will be decided denovo on merits. It would be open to the parties to lead such evidence as they like. Since the matter is an old one, the Tribunal is directed to decide the matter within six months from the date of the production of a certified copy of the order. In the circumstances, the parties shall bear their own cost. The writ petition is partly allowed.