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2016 DIGILAW 1046 (RAJ)

Vinod Kumar Sharma v. Chief Manager, Alwar(Depot)

2016-07-22

DINESH CHANDRA SOMANI, MOHAMMAD RAFIQ

body2016
JUDGMENT : Mohammad Rafiq, J. This appeal is directed against the judgment dated 12.09.2012 passed by the learned Single Judge whereby writ petition filed by the appellant has been dismissed. 2. The appellant in the aforesaid writ petition challenged validity of award dated 25.07.2011 passed by Industrial Tribunal cum Labour Court, Alwar (for short 'the Labour Court'), whereby the Labour Court, while answering the reference on the question of validity of removal of the appellant from service by the respondent no. 1-management vide order dated 10.06.1993, held the same to be legal and justified. Learned Single Judge upheld the award relying on the observations made by the Division Bench of this Court in its judgment dated 06.07.2004 passed in Rajasthan State Road Transport Corporation v. Vinod Kumar Sharma and Another (D.B. Civil Special Appeal (Writ) No. 255/2004). It may be pertinent to note here that the Respondent No. 1 filed the aforesaid special appeal before Division Bench of this Court against judgment of the Single Bench of this Court dated 23.02.2004 where under order dated 18.04.1998 passed by Industrial Tribunal, Rajasthan, Jaipur (for short 'the Tribunal') dismissing their application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short 'the Act') refusing to grant approval for dismissal of appellant, was upheld. 3. Facts of the case are that on 29.08.1991, the bus of Respondent No. 1-management, on which the appellant Vinod Kumar Sharma was working as conductor, was inspected at a place known as Nangal Meena by the vigilance team. Total 48 passengers were found in that bus, out of which 15 were found without tickets. It was alleged that the appellant already collected fare from these passengers, but did not issue tickets to them. A charge sheet was served upon him for this misconduct and in a domestic enquiry, charge was found proved against the appellant. After issuance of notice upon the appellant, the disciplinary authority imposed penalty of removal from service upon him vide order dated 10.06.1993. As already noted above, the application filed by Respondent no. 1-management under Section 33(2)(b) of the Act seeking approval of removal order was disallowed by the Tribunal, which order was upheld by the Single Bench of this Court. After issuance of notice upon the appellant, the disciplinary authority imposed penalty of removal from service upon him vide order dated 10.06.1993. As already noted above, the application filed by Respondent no. 1-management under Section 33(2)(b) of the Act seeking approval of removal order was disallowed by the Tribunal, which order was upheld by the Single Bench of this Court. However, the Division Bench of this Court vide judgment dated 06.07.2004 passed in D.B. Civil Special Appeal(Writ) No. 255/2004 reversed both the judgments and granted approval for dismissal of appellant under Section 33(2)(b) of the Act. The appellant, thereafter, approached the appropriate Government which made a regular reference vide notification dated 15.06.1999 and referred the dispute to the Labour Court that whether removal of the appellant by the respondent-management was legal and valid and if not, what relief was he entitled to? The Labour Court vide award dated 25.07.2011 upheld the removal of the appellant to be legal and valid and further held him not entitled to any relief. The learned Single Judge vide judgment impugned in the present appeal has upheld the award of the Labour Court relying on the observations made by the Division Bench of this Court in the aforesaid judgment dated 06.07.2004 in D.B. Civil Special Appeal(Writ) No. 255/2004, granting approval of removal of the appellant under the scope of Section 33(2)(b) of the Act. Following observations were made by the Division Bench in the aforesaid judgment, while granting approval of removal of the appellant: "According to him 13 ticket-less passengers were students who had refused to make payment of the due fare and they were travelling on the roof of the bus. But he has not set up any such plea at the time of inspection of the bus by the flying squad. There were only 48 passengers in the bus and the inspection memo as well as the inspection note made on the way bill indicate that they were all travelling inside the bus and not on the roof. The story of 13 ticket-less passengers being students and they were travelling on the roof is not borne out from the record. If there has been any truth in this plea, he could have very well examined the driver in support thereof or could have made a representation immediately after the checking to the concerned authorities. The story of 13 ticket-less passengers being students and they were travelling on the roof is not borne out from the record. If there has been any truth in this plea, he could have very well examined the driver in support thereof or could have made a representation immediately after the checking to the concerned authorities. But he having not done so, this plea does not appear to be believable. If, he had not collected the fare from those 13 passengers, he would not have deposited their fare in the Corporation treasury and would have lodged his protest with the flying squad. This apart, of 13 ticket-less passenger were students who had refused to take the tickets, he could have taken the bus to the nearest police station and lodged a report against them in this regard, but he has not done so which also belies his plea and the story appears to be cooked up and after thought." 4. Mr. Suresh Kashyap, learned counsel for the appellant argued that the learned Single Judge erred in law in dismissing the writ petition inter alia on the basis of observations made by the Division Bench of this Court vide judgment dated 06.07.2004 passed in the aforesaid special appeal. Scope of examination before the Division Bench in that case was whether the Tribunal was justified in refusing to grant approval of appellant's removal. It was in that context that Division Bench made the afore-quoted observations. Findings recorded by the Tribunal/this Court in the scope of Section 33(2)(b) of the Act were not binding, while considering validity of removal of the appellant. Learned counsel, in support of his arguments, relied on the judgment of Delhi High Court in Surinder Pal v. Management of Delhi Transport Corporation, 2008 (119) FLR 551 and Single Bench judgment of this Court in Hindustan Copper Limited, Khetri v. Shri Sangram Singh and Another, 2010 (4) CDR 2207(Raj.). Learned counsel for the appellant also relied upon various judgments, which have been referred to in the judgments in the cases of Surinder Pal (supra) and Hindustan Copper Limited, Khetri (supra). Learned counsel for the appellant also relied upon various judgments, which have been referred to in the judgments in the cases of Surinder Pal (supra) and Hindustan Copper Limited, Khetri (supra). In all the aforesaid judgments, it has been held that approval granted by the Industrial Tribunal under Section 33(2)(b) of the Act cannot be a reason for not making a regular reference under the scope of Section 10A of the Act, as to the validity of order of removal of workman from service. Even if requisite permission is granted to the employer under Section 33(2)(b) of the Act, that does not foreclose the option of the workman to get regular reference on the industrial dispute made to the appropriate Industrial Court/Tribunal. Approval of dismissal by the Industrial Tribunal merely enables the employer to make an order of dismissal in regard to penalty imposed under Section 31(1) of the Act. 5. Learned counsel for the appellant further argued that judgment of the Division Bench of this Court, granting approval for removal of the appellant in the scope of Section 33(2)(b) of the Act, is based on misreading of record. Learned counsel in this regard referred to page 11 of the judgment (supra) and argued that the Division Bench disbelieved the explanation of the appellant that 13 ticket less passengers were students and they were travelling on the roof and held that had there been truth in this plea, the appellant could have very well produced the driver of the vehicle for examination in support thereof or could have made a representation immediately after the checking of the vehicle by the concerned authorities. Since he had not done so, this plea does not appear to be correct. Learned counsel submitted that driver was in fact examined and he supported the plea of the appellant. Reference in this connection has been made to statement of Ram Kishan Meena, driver of the bus, copy of which has been placed on record as Annexure-13 with the writ petition. It is argued that driver has categorically stated that when their bus reached the place known as Nangal Meena via Ukdoon around 2.45 P.M. on 29.08.1991, checking party inspected the bus. At that time, conductor, i.e. the appellant was having altercation with the boys, who were not paying fare. These boys had climbed roof of the bus from Mahua and were not getting the tickets issued. At that time, conductor, i.e. the appellant was having altercation with the boys, who were not paying fare. These boys had climbed roof of the bus from Mahua and were not getting the tickets issued. In fact, the conductor got the bus stopped and climbed roof so that they could pay the tickets. There were 10-15 boys on the roof of the bus, who were refusing to get the tickets. Students were insisting on payment of half fare but they were not having any identity card. Conductor was insisting from them to pay full fare. Suddenly, flying squad came from behind in a jeep and caught 13 students without tickets. Learned counsel submitted that Division Bench of this Court has completely overlooked this aspect of the matter and has rendered the decision on the assumption that the driver of the vehicle was not produced as a witness. 6. Learned counsel for the appellant has also relied upon the judgment of the Supreme Court in The Management of Shri Ganapati Bus Service, Thirunelveli v. Presiding Officer, Labour Court and Others, AIR 2001 SC 427 and argued that in that case also allegation against the conductor was of not collecting the fare from passengers. The Labour Court found that in one case the loss was of very meagre amount and in other case, there was no loss. Dismissal in those facts was held to be disproportionate penalty and direction was issued for reinstatement. Referring to statement of the appellant himself recorded before the Enquiry Officer, learned counsel submitted that the appellant therein has also deposed that students had boarded the bus from Mahua and they climbed roof of the bus. They were insisting on payment of only half fare whereas they were not having identity cards. The appellant was refusing to issue them tickets for half amount for that reason. Suddenly, the bus had to be halted at place Rashidpur for that reason but subsequently, the bus was again started because of the pressure of the passengers. He wanted to take the bus to the police station. When the bus reached the place Ukdoon, nine passengers again boarded the bus. At that time also, the appellant gave last warning to students to get the tickets issued. Suddenly thereafter, the checking party came from behind and found these students without tickets. He wanted to take the bus to the police station. When the bus reached the place Ukdoon, nine passengers again boarded the bus. At that time also, the appellant gave last warning to students to get the tickets issued. Suddenly thereafter, the checking party came from behind and found these students without tickets. It is, therefore, prayed that the present appeal be allowed and the judgment passed by the learned Single Judge of this Court may be quashed and set aside. 7. Mr. Vinayak Joshi, learned counsel for Respondent No. 1 opposed the appeal and argued that learned Single Judge was perfectly justified in dismissing the writ petition because as many as 13 passengers were found without tickets in the bus, in which the appellant was working as conductor. This charge has been proved against him by overwhelming evidence. Learned counsel argued that as noted in para 23 of the award, four previous charge sheets were also served upon the appellant. Learned Labour Court was, therefore, perfectly justified in answering the reference in the terms that dismissal of the appellant was legally valid. The learned Single Judge did not commit any error of law in upholding the judgment by relying on the observations made by the Division Bench granting approval of removal of the appellant under Section 33(2)(b) of the Act, which would be relevant and binding for deciding the present controversy. 8. The first and foremost question that requires reconsideration of this Court is whether the findings recorded by the Division Bench of this Court in its judgment dated 06.07.2004 passed in D.B. Civil Special Appeal No. 255/2004 (Rajasthan State Road Transport Corporation v. Vinod Kumar Sharma and Another) (supra), proceedings arising out of the application filed by the management under Section 33(2)(b) of the Act seeking approval of removal of the appellant, would be binding on the labour Court and for that matter, this Court for answering the reference on the question of validity of such removal. 9. 9. The Labour Court, in this behalf, has taken note of the judgment of the Supreme Court in Workmen of the Motipur Sugar Factory Private Ltd. v. The Motipur Sugar Factory Private Ltd., AIR 1965 SC 1803 (para 11), wherein scope of Section 10 of the Act has been discussed and Punjab National Bank Ltd. v. All India Punjab National Bank Employees' Federation and Another, AIR 1960 SC 160 (para 24 and 25); M/s. G. Mckenzie & Co. Ltd. v. Its Workmen and Others, AIR 1959 SC 389 (para 16 and 18). In all the aforesaid decisions, it has been held that order passed in proceedings under Section 33 of the Act do not create res judicata for proceedings of reference on an industrial dispute under Section 10 of the Act. Approval under Section 33(2)(b) of the Act is granted on prima facie case and it cannot be taken as adjudication of the dispute. The Labour Court also took note of judgment of Calcutta High Court in Tushar Kanti Ray v. The Second Industrial Tribunal, West Bengal and Others, 2004 Lab. I.C. 2265 and judgment of Karnataka High Court in Management of M/s. Indian Aluminium Co. Ltd., Belgaum, v. S. Nagaiah, 2005 Lab I.C. 2444, in which it was held that proceedings under Section 33 of the Act do not finally determine the dispute between the parties and that regular reference under Section 10 of the Act can nevertheless be made thereafter. The Labour Court also took note of judgment of this Court in Hindustan Copper Limited(supra), wherein it has been held that grant of approval of removal under Section 33(2)(b) of the Act does not put an end to the controversy and that validity of such removal can be questioned in a regular reference under Section 10 of the Act even thereafter. But then the Labour Court in para 17 of the award has observed that judgment rendered by Division Bench of this Court in D.B. Civil Special Appeal No. 255/2004 (Rajasthan State Road Transport Corporation v. Vinod Kumar Sharma and Another) (supra) was still effective where under approval for removal of the appellant under Section 33(2)(b) of the Act was granted by this Court. The Labour Court in para 20 of the award has taken note of the statement of driver, Ram Kishan Meena(D.W.2) recorded during enquiry, who has supported claim of the appellant that 13 passengers found ticket less were in fact students, who were insisting for concession of 50% and the appellant was refusing to them to do so because they did not have identity cards. Moti Lal Sharma(D.W.3) also supported claim of the appellant and the driver, but the Labour Court in para 23 has referred to previous four incidences in which the appellant was found carrying passengers without tickets, i.e. 8 passengers on 14.03.1987; 1 passenger on 30.01.1987; four passengers on 30.05.1991 and four passengers on 14.06.1991. The Labour Court has also noted that with regard to incident of 14.03.1987, the appellant was removed from service and for another incident dated 30.01.1987, penalty of Rs. 100 was imposed upon him and in the incidents of 1991, on each of which occasion four passengers were found in the bus without tickets, enquiry was said to be pending. 10. When the present matter was taken up by this Court on 03.05.2016, learned counsel for the appellant disputed correctness of the aforesaid fact that the appellant was earlier removed vide order dated 14.03.1987. This Court required Respondent No. 1 to produce on record by way of affidavit copy of order of removal if any passed as alleged in para 23 of the award. Affidavit filed by Respondent No. 1 indicates that termination of the appellant was not made on 14.03.1987, but it was made on 18.03.1987, which was termination simpliciter, not by way of penalty. At that time, the appellant was working as daily wager and termination was not made by way of penalty. No misconduct whatsoever has been mentioned in that said order. The Labour Court, in our view, was not, therefore, justified in mentioning such termination by way of penalty. 11. At that time, the appellant was working as daily wager and termination was not made by way of penalty. No misconduct whatsoever has been mentioned in that said order. The Labour Court, in our view, was not, therefore, justified in mentioning such termination by way of penalty. 11. The Supreme Court in Atherton West and Company Limited v. The Suti Mill Mazdoor Union and Others, 1953 (2) LLJ 321, in the context of Clause 23 of Notification of U.P. Government under the U.P. Industrial Disputes Act, which was pari materia to Section 33 of the Act, repelled the argument that approval granted by the competent authority for removal of some of the workmen therein was final and conclusive and held that once the written permission was granted by the officer concerned, the ban against the discharge or dismissal of the workman would be removed and the employer. His agent or manager could in the exercise of his discretion discharge or dismiss the workman but in that event an industrial dispute within the meaning of its definition contained in Section 2(k) of the Act would arise and the workman, who had been discharged or dismissed, would be entitled to have that industrial dispute referred to the Regional Conciliation Board for inquiry into the same. 12. In The Automobile Products of India Ltd. v. Rukmaji Bala & Others, (1955) (1) LLJ 346 (SC) it was held by the Supreme Court that jurisdiction under Section 33 of the Act is only to impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission i.e. to lift or maintain the ban. The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workman, but has only got to consider whether the ban which is imposed on the employer in matter of altering the conditions of employment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted. 13. In M/s. G. Mckenzie and Co. 13. In M/s. G. Mckenzie and Co. Ltd. (supra), the Supreme Court expressly rejected the argument that the findings of the State Industrial Tribunal therein in proceedings under Section 33 of the Act, which were confirmed by the Labour Appellate Tribunal therein, barred the right of the management of the appellant-company to start a fresh inquiry in respect of the same incident, which formed the subject matter of the previous inquiry. 14. In Surinder Pal(supra), Division Bench of Delhi High Court, relying on various Supreme Court judgments, rejected the aforesaid argument and held that finding recorded under Section 33(2)(b) of the Act by Industrial Tribunal, would not operate as res judicata. The Supreme Court in Punjab National Bank Ltd.(supra) elaborately discussed the scope and object of Section 33 of the Act and in para 25 of the judgment, held that even if requisite permission is granted to the employer under Section 33 of the Act, that would not be the end of the matter. It is not as if the permission granted under Section 33 validates the order of dismissal. It merely removes the ban; and so the validity of the order of dismissal still can be, and often is, challenged by the union of the employees by raising an industrial dispute in that behalf. In the case of Section 33, the removal of the ban merely enables the employer to make an order of dismissal and thus avoid incurring the penalty imposed by Section 31(1) of the Act. But if an industrial dispute is raised on such a dismissal, the order of dismissal passed even with the requisite permission obtained under Section 33 has to face the scrutiny of the Tribunal. 15. In view of above discussion, it is clearly evident that the findings recorded by Division Bench of this Court in proceedings under Section 33(2) of the Act could not be taken as binding in so far as adjudication of dispute in regular reference proceedings is concerned. This is besides the point that Division Bench observations are based on misreading of the relevant record as it has wrongly mentioned that driver was not produced as witness whereas he was actually produced. 16. In these circumstances, judgment passed by the learned Single Judge cannot be sustained and the writ petition requires reconsideration on merits. 17. In the result, the appeal deserves to succeed and the same is accordingly allowed. 16. In these circumstances, judgment passed by the learned Single Judge cannot be sustained and the writ petition requires reconsideration on merits. 17. In the result, the appeal deserves to succeed and the same is accordingly allowed. Impugned judgment is quashed and set aside and the matter is remitted back to the learned Single judge for deciding the writ petition afresh, keeping all the questions open including the question with regard to proportionality of the quantum of punishment. Appeal allowed.