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Himachal Pradesh High Court · body

2016 DIGILAW 44 (HP)

Chairman Managing Committee ARTRAC v. Devki Nand Kalta s/o Sh. Kewal Ram Kalta

2016-01-06

P.S.RANA

body2016
ORDER P. S. Rana, J. Present civil writ petition is filed under Article 226/227 of Constitution of India with the prayer to quash and set-aside the award dated 03.9.2014 passed by learned Central Govt. Industrial Tribunal-cum- Labour Court-I Chandigarh in Case No. ID83 of 2013 titled Devki Nand Kalta vs. Chairman Managing Committee ARTRAC Canteen Shimla (H.P.) & Another. BRIEF FACTS OF THE CASE 2. It is pleaded that on 07.06.2002 non-petitioner Devki Nand Kalta was appointed as Salesman in Unit Run Canteen (URC) ARTRAC Shimla on temporary basis. It is further pleaded that on 15.11.2011 non-petitioner was transferred to URC Mandi. It is further pleaded that on 30.11.2011 non-petitioner obtained stay order from CAT against the transfer order dated 15.11.2011 and did not join his posting station. It is further pleaded that thereafter in the month of April 2012 petitioner filed CMPMO No. 112/2012 assailing the order dated 30.11.2011 passed by Central Administrative Tribunal in OA No.1266/HP/11. It is further pleaded that thereafter non-petitioner filed CWP No.4481/2012 after withdrawing OA No.1266/HP/11 from CAT in the Hon’ble High Court. It is further pleaded that thereafter on 27.09.2012 Hon’ble High Court disposed of CWP No.4481/2012 filed by non-petitioner with the observation that Hon’ble High Court had no jurisdiction to adjudicate upon the controversy inter se parties. It is further pleaded that thereafter on 20.06.2013 Govt. of India Ministry of Labour referred the dispute to Central Govt. Industrial Tribunal-cum- Labour Court-I Chandigarh for adjudication. It is further pleaded that thereafter Central Govt. Industrial Tribunal-cum-Labour Court-I Chandigarh held that action of the petitioners in terminating the service of non-petitioner w.e.f. 30.9.2012/8.1.2013 is unjustified and illegal. Central Govt. Industrial Tribunal-cum-Labour Court-I Chandigarh directed to re-instate the non-petitioner at Mandi Canteen within one month from the date of publication of award alongwith 60% of the back wages. Feeling aggrieved against the award passed by Central Govt. Industrial Tribunal-cum-Labour Court-I Chandigarh petitioners filed the present civil writ petition. Prayer for acceptance of civil writ petition sought. 3. Per contra response filed on behalf of non-petitioner pleaded therein that non-petitioner falls under the Industrial Disputes Act 1947. It is further pleaded that service of non-petitioner terminated w.e.f. 30.9.2012/8.1.2013 without following the procedure laid down under Section 25(F) of Industrial Disputes Act 1947. It is further pleaded that action of the petitioners to terminate the service of non-petitioner has been rightly held to be illegal. It is further pleaded that service of non-petitioner terminated w.e.f. 30.9.2012/8.1.2013 without following the procedure laid down under Section 25(F) of Industrial Disputes Act 1947. It is further pleaded that action of the petitioners to terminate the service of non-petitioner has been rightly held to be illegal. It is further pleaded that learned Central Govt. Industrial Tribunal-cum-Labour Court-I Chandigarh has passed well reasoned order in accordance with law. Prayer for dismissal of civil writ petition sought. 4. Court heard learned Advocates appearing on behalf of petitioners and non-petitioner at length and also perused the entire records carefully. 5. Following points arise for determination: 1) Whether petition filed under Article 226/227 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of civil writ petition? 2) Final order. Findings upon point No.1 with reasons: 6. It is proved on record that Government of India Ministry of Labour vide notification No.1-42012/22/2013-IR(DU) dated 20.06.2013 has referred the following dispute to Central Govt. Industrial Tribunal-cum-Labour Court-I Chandigarh for adjudication: “Whether the action of the Managing Committee of ARTRAC Canteen Shimla in terminating the service of Sh. Devki Nand Kalta w.e.f. 30.09.2012/08.01/2013 without following the procedure laid down u/s 25-F of the ID Act 1947 is just and legal? To what relief the workman is entitled and from which date?” 7. It is also proved on record that Brigadier Chairman Canteen Managing Committee HQ ARTRAC issued notice to non-petitioner for termination of service on dated 24.12.2011 which is quoted in toto: “BY REGISTERED POST Headquarters Army Training Command Shimla (HP) -177 003 24 Dec.2011 500195/47/SML/Q/CC Ex Sub & Hony Sub Maj Devki Nand Kalta Vill- Khalantu, Post Office – Mohri Tehsil – Theog Distt- Shimla (HP) NOTICE FOR TERMINATION OF SERVICE 1. Refer to HQ ARTRAC Canteen, Shimla movement order No.40/SML/Can dt 13 Dec 2011. 2. You were ordered to move on permanent transfer to ARTRAC Canteen Mandi vide movement order quoted in para 1 above. It has been intimated by the Manager ARTRAC Canteen Mandi that you have failed to report on duty so far. 3. You are hereby notified that if you do not report to ARTRAC Canteen Mandi by 22 Jan 2012 i.e. 30 days from the signing of this notice, your services in the ARTRAC Canteens will be terminated. Sd/- Brigadier Chairman Canteen Managing Committee HQ ARTRAC” 8. Thereafter again Lt. Col. 3. You are hereby notified that if you do not report to ARTRAC Canteen Mandi by 22 Jan 2012 i.e. 30 days from the signing of this notice, your services in the ARTRAC Canteens will be terminated. Sd/- Brigadier Chairman Canteen Managing Committee HQ ARTRAC” 8. Thereafter again Lt. Col. O/C Canteen HQ ARTRAC issued show cause notice to non-petitioner on dated 02.02.2012 which is also quoted in toto: “BY REGISTERED POST Headquarters Army Training Command Shimla (HP) -177 003 02 Feb. 2012 500195/47/SML/Q/CC Ex Sub & Hony Sub Maj Devki Nand Kalta Vill- Khalantu, Post Office – Mohri Tehsil – Theog Distt- Shimla (HP) ORDER FOR TERMINATION OF SERVICE 1. Refer to (a) HQ ARTRAC Canteen, Shimla movement order No.40/SML/Can dated 13 Dec 2011. (b) HQ ARTRAC letter No. 500195/47/SML/Q/CC dated 24 Dec 2011 2. In spite of adequate notice given to you, you have failed to report on duty at ARTRAC Canteen Mandi till date. 3. You are hereby directed to show cause as to why your services should not be terminated with immediate effect. Your reply should reach this office by 20 Feb 2012 positively. Sd/- Lt Col. O/C Canteen HQ ARTRAC” 9. Thereafter Brigadier Chairman Canteen Managing Committee HQ ARTRAC issued order for termination of service of non-petitioner dated 08.01.2013 which is quoted in toto: “BY REGISTERED POST Headquarters Army Training Command Shimla (HP) -177 003 08 Jan. 2013 500195/47/SML/Q/CC Ex Sub & Hony Sub Maj Devki Nand Kalta Vill- Khalantu, Post Office – Mohri Tehsil – Theog Distt- Shimla (HP) ORDER FOR TERMINATION OF SERVICE 1. Refer to (a) HQ ARTRAC Canteen Shimla movement order No.40/SML/Can dated 13 Dec 2011. (b) HQ ARTRAC letter No. 500195/47/SML/Q/CC dated 24 Dec 2011 (c) HQ ARTRAC letter No. 500195/47/SML/Q/CC dated 02 Feb 2012 2. Despite clear directions and explicit dates given there at you have not reported for duty at ARTRAC Canteen Mandi. 3. Your services are hereby terminated in keeping with the provisions of the SOP for ARTRAC Canteen employees. 4. This order is being issued consequent to disposal of CWP No. 4484 of 2012 by Hon’ble High Court of Himachal Pradesh. Sd/- Brigadier Chairman Canteen Managing Committee HQ ARTRAC” 10. 3. Your services are hereby terminated in keeping with the provisions of the SOP for ARTRAC Canteen employees. 4. This order is being issued consequent to disposal of CWP No. 4484 of 2012 by Hon’ble High Court of Himachal Pradesh. Sd/- Brigadier Chairman Canteen Managing Committee HQ ARTRAC” 10. It was held in case reported in (2009) 3 Supreme Court Cases 124 titled Novartis India Ltd. vs. State of West Bengal & Others that if employee did not join at transferred place then dismissal of employee from service without holding any domestic inquiry/disciplinary proceedings is void ab initio. 11. In the present case there is no evidence on record in order to prove that petitioners conducted domestic inquiry/disciplinary proceedings against non-petitioner. It is well settled law that nonjoining at transferred place by the employee amounts to mis-conduct. 12. As per Article 141 of Constitution of India law declared by Supreme Court of India is binding upon all Courts within the territory of India. Present dispute inter se parties is relating to non-joining at transferred place by non-petitioner. It is proved on record that non-petitioner was transferred to URC Mandi. 13. As per Rule 28 of Rules regulating the terms and conditions of service of civilian employees of Unit Run Canteen paid out of non public fund which came into force w.e.f. 04.01.2001 joining time is seven days with full pay and one month’s basic pay as transfer grant. 14. As per Rule 24 of Rules regulating the terms and conditions of service of civilian employees of Unit Run Canteen paid out of non public fund there is procedure for dealing with case of misconduct of employee. Rule 24 is quoted in toto: “24. PROCEDURE FOR DEALING WITH CASE OF MISCONDUCT: Before awarding to an employee any of the punishment mentioned in Rule 24, following procedure shall be followed by the disciplinary authority:- (a) The employee shall be served with a charge sheet, clearly stating the details of misconduct against him and calling upon him to show cause as to why one or more of the punishment is included in these Rules should not be awarded to him. (b) The reply to the charge sheet if any shall be duly considered by the disciplinary authority. (b) The reply to the charge sheet if any shall be duly considered by the disciplinary authority. (c) If the employee so desires, he is to be heard in person and is also to be allowed to cross examine witness(es) against him or produce witnesses in his defence. The disciplinary procedure is laid down in Schedule ‘B’.” 15. Procedure mentioned in Schedule ‘B’ is quoted in toto: “Schedule ‘B’ PROCEDRUE FOR DISMISSAL/DISCAHRGE The procedure for dismissal/discharge on account of misconduct/indiscipline is as follows: (a) Before the employee is dismissed or discharged from service following procedure shall be adopted in accordance with the principle of natural justice as applicable from case to case:- (i) Issuance of Charge-sheet. (ii) Appointment of Inquiry Officer. (iii) Holding of any inquiry. (iv) Perusal of the report of Inquiry Officer by the Disciplinary Authority. (v) Issuance of show cause notice. (vi) Issuance of order of punishment. (b) In the event of the services of a legally qualified person being utilized by the management/establishment to present their case before the Inquiry Officer, the same opportunity must be offered/afforded to the delinquent employee. However the employee can utilize the services of one of his colleagues to present his case before the inquiry Officers. (c) After considering the inquiry report, if misconduct is established the disciplinary authority shall proceed to take appropriate action. However the disciplinary authority is not bound to accept the inquiry report but while awarding the punishment the authority must state its reasons for not accepting the inquiry report.” 16. In the present case it is proved on record that petitioners while terminating the service of non-petitioner did not follow the procedure for dismissal on account of misconduct mentioned in Schedule ‘B’. There is no evidence on record that charge sheet was issued to the non-petitioner. There is no evidence on record that Inquiry Officer was appointed and inquiry was conducted. There is no evidence on record that Disciplinary Authority has perused the report of Inquiry Officer. 17. In view of the above stated facts it is held that while issuing order dated 08.01.2013 learned Brigadier Chairman Canteen Managing Committee HQ ARTRAC did not adopt the procedure for dismissal as mentioned in Rules regulating the terms and conditions of service of civilian employees of Unit Run Canteen paid out of non public fund as mentioned in Schedule ‘B’ Procedure for dismissal on account of misconduct. Point No.1 is answered accordingly. Point No.2 (Final Order). 18. In view of findings upon point No.1 above order for termination of service of non-petitioner dated 08.01.2013 issued by learned Brigadier Chairman Canteen Managing Committee HQ ARTRAC Shimla (H.P.) is set-aside and is held to be illegal and void ab initio and Chairman Canteen Managing Committee HQ ARTRAC is directed to decide the matter afresh within three months after following the procedure for dismissal/discharge on account of misconduct mentioned in Schedule ‘B’ and Rules regulating the terms and conditions of service of civilian employees of Unit Run Canteen paid out of non public fund which came into force w.e.f. 04.01.2001. Award dated 03.9.2014 passed by learned Central Govt. Industrial Tribunal-cum- Labour Court-I Chandigarh in Case No. ID83 of 2013 titled Devki Nand Kalta vs. Chairman Managing Committee ARTRAC & Another is modified to this extent only. Observations will not effect merits of case in any manner and will be strictly confined for disposal of CWP No.8724/2014-C. No order as to costs. Parties are directed to appear before Chairman Canteen Managing Committee HQ ARTRAC Shimla (H.P.) on 2nd February 2016. Learned Registrar (Judicial) will send certified copy of this order forthwith for compliance to Chairman Canteen Managing Committee HQ ARTRAC Shimla (H.P.). CWP No. 8724/2014-C is disposed of. Pending application(s) if any also disposed of.