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2022 DIGILAW 1536 (ALL)

U. P. S. R. T. C. v. Labour Court

2022-09-22

J.J.MUNIR

body2022
JUDGMENT : J.J. Munir, J. This writ petition is directed against the judgment and award passed by the Presiding Officer, Labour Court, U.P., Lucknow in Adjudication Case No. 170 of 2007 dated 18th March, 2010, published on 3rd March, 2011. 2. Ganga Rai, respondent No. 2 to this petition, was employed as a driver with the Uttar Pradesh State Road Transport Corporation in the year 1979. Ganga Rai shall hereinafter be referred to as 'the workman'. The two petitioners here, who are substantially one and the same, that is to say, the Uttar Pradesh State Road Transport Corporation, represented by their General Manager for the Azamgarh Region, Azamgarh, shall hereinafter be called 'the employers'. 3. Shorn of unnecessary details, the workman was placed under suspension pending inquiry by the employers on 9.12.1987. Two charge-sheets, carrying distinct charges, were issued to the workman by the employers, one dated 20.11.1987 and the other dated 1.1.1988. He was required to file his reply to the charge-sheets within the time specified. An Inquiry Officer was appointed to inquire into the charges and submit a report. It is common ground between parties that the workman participated in the ensuing inquiry. The workman was exonerated of the charges carried in the charge-sheet dated 20.11.1987. However, of the three charges carried in the charge-sheet dated 1.1.1988, the workman was exonerated in regard to Charge No. 1, but held guilty on Charges Nos. 2 and 3. 4. The Assistant Regional Manager of the employers issued a show-cause notice to the workman on 4.12.1989, to which the workman submitted his reply. The Assistant Regional Manager vide his order dated 31.3.1990 ordered the workman's removal from service and forfeiture of the balance of all emoluments for the period of suspension. A departmental appeal was preferred from the said order, which was rejected by the departmental appellate authority vide order dated 26.10.1990. This order was communicated to the workman on 22.1.1991. 5. The workman invoked the provisions of the Uttar Pradesh Industrial Disputes Act, 1947 (for the short, 'the Act of 1947') claiming the termination of his services by the employers to be unlawful. The following reference was made by the Deputy Labour Commissioner, Gorakhpur vide order dated 8.4.1991 (translated into English from Hindi): Whether termination of services of the workman, Sri Ganga Rai (Driver) son of Sri Suryabali Rai, by the employers on 31.3.1990 is just and/or lawful? The following reference was made by the Deputy Labour Commissioner, Gorakhpur vide order dated 8.4.1991 (translated into English from Hindi): Whether termination of services of the workman, Sri Ganga Rai (Driver) son of Sri Suryabali Rai, by the employers on 31.3.1990 is just and/or lawful? If not, to what relief is the concerned workman entitled and with what other benefits? 6. On the aforesaid reference, Adjudication Case No. 209 of 1991 was registered on the file of the Labour Court, Gorakhpur. Later on, by a Government Order dated 31.7.2007, the industrial dispute was transferred to the Labour Court, Lucknow. After registration of the case before the Labour Court at Lucknow, notice was issued to both parties, directing them to appear. The workman appeared and put in his written statement, where after detailing the course of proceedings, already extracted hereinabove, the workman pleaded that termination of his services was unlawful and unjust. It was also the workman's case that the Inquiry Officer was not appointed by the competent officer, empowered in this behalf. The workman was not afforded any opportunity to defend himself or produce evidence in his defence. The entire disciplinary proceedings were held in utter disregard of the principles of natural justice. It was pleaded on behalf of the workman that he had not done any such act, on account of which the employers would have sustained injury. It was pleaded that he was falsely implicated by and at the behest of some persons, harbouring personal ill-will and malice against him, who conspired to implicate him. 7. The employers in their written statement pleaded that the workman was suspended and charge-sheeted on various charges, which include refusing to operate the Delux Bus on its route on 23.11.1987, misbehaving with Pramod Kumar Mishra, Senior Clerk on 8.12.1987 and on the same day threatening the Assistant General Manager, R.N. Tiwari with death. It was in consequence of these charges that the workman was suspended from service on 9.12.1987, regarding which he was served with a charge-sheet dated 1.1.1988. On the workman's reply not being found satisfactory by the employers, an Inquiry Officer was appointed on 30.12.1988. The Inquiry Officer held inquiry after summoning both parties. The workman was given due opportunity to defend himself by the Inquiry Officer, who submitted his inquiry report on 16.5.1989. On the workman's reply not being found satisfactory by the employers, an Inquiry Officer was appointed on 30.12.1988. The Inquiry Officer held inquiry after summoning both parties. The workman was given due opportunity to defend himself by the Inquiry Officer, who submitted his inquiry report on 16.5.1989. The rest of the averments are about the course of proceedings, leading to the order of removal, most of which have already been recounted. It was particularly pleaded in Paragraph No. 9 of the written statement filed on behalf of the employers that if the Labour Court is of opinion that there has been any flaw in holding the inquiry or that no inquiry has been held at all, the employers have the right to prove the charges against the workman before the Labour Court by leading necessary evidence. There is a prayer carried in the written statement that in case the Labour Court reaches conclusion about any flaw in the inquiry, the employers may be given opportunity to prove the charges before the Labour Court. There is pleading to the effect, albeit in words more ceremonial than substantial, that the order of reference is bad and that the Labour Court had no jurisdiction to decide any dispute beyond the terms of reference. 8. The Labour Court, after hearing parties on 25.8.1993, framed an issue about the validity of the domestic inquiry to the effect whether the said inquiry was fair, lawful and bona fide. The Labour Court, by an order dated 8.4.1999, held that despite opportunity being afforded to the employers on the issue about the fairness of the domestic inquiry, they chose not lead any evidence or to prove any documents. It was held that the domestic inquiry was not fair and proper. The employers were, therefore, granted opportunity to lead evidence on 2.8.1999 in support of the charges before the Labour Court. 9. The Labour Court, after consideration of the evidence led by the employers, passed the impugned award holding the charges not proved by the evidence on record. The reference was answered in terms that the termination of services of the workman by the employers on 31.3.1990 was not lawful and proper. It was further directed that the workman was entitled to be reinstated in service with continuity. The workman was awarded 20% back-wages for the period of his disengagement. The reference was answered in terms that the termination of services of the workman by the employers on 31.3.1990 was not lawful and proper. It was further directed that the workman was entitled to be reinstated in service with continuity. The workman was awarded 20% back-wages for the period of his disengagement. The Labour Court has also invoked its powers under Section 6(2-A) of the Act of 1947 in making the impugned award. 10. Heard Mr. S.M. Mishra, learned Counsel for the employers and Mr. Sandeep Kumar Rai, learned Counsel appearing for the workman. 11. It is argued by Mr. S.M. Mishra, learned Counsel for the employers that the Labour Court has concluded in manifest error that Pramod Kumar Mishra, who was a Senior Clerk, could not prove the charge of misbehaviour with him against the workman by his evidence adduced before the Labour Court. Likewise is the submission regarding the conclusions on the charge relating to misbehaviour with the Assistant Regional Manager. It is argued by Mr. Mishra that these two witnesses, no doubt the complainants, could not be disbelieved by the Labour Court for the reason alone that they were complainants with regard to the relative charges. It is also argued that the Labour Court committed a manifest illegality in relying upon the workman's testimony to disbelieve the employers' witnesses. The entitlement of the workman to receive back-wages has been scathingly criticized by Mr. Mishra with the submission that back-wages cannot be claimed as a matter of right, when the order of removal is set aside by the Labour Court. In this connection, he has drawn the attention of the Court to the decision of the Supreme Court in Management of Regional Chief Engineer, Public Health and Engineering Department, Ranchi v. Their Workmen represented by District Secretary, (2019) 18 SCC 814 . In Management of Regional Chief Engineer, PHED (supra), it was held: 10. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. 11. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. 11. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee. 12. It is argued that it was a duty of the workman to prove that he was not gainfully employed during the period he was out of employment, which he has not done. It is submitted that this burden not being discharged by the workman, the award of 20% back-wages is bad in law. 13. Mr. Sandeep Kumar Rai, learned Counsel for the workman, on the other hand, submits that the workman had urged that he was not given opportunity by the Inquiry Officer and the inquiry was not fair. On the pleadings of parties, an issue was farmed, whereon it was held against the employers by the Labour Court on 8.4.1999. The employers were granted opportunity to lead evidence, which they did. It is submitted that the employers produced the two complainants alone as witnesses, whereas regarding the incident relative to the two charges, there were a number of named witnesses, such as Shiv Nath Singh, Shiv Badan Singh, Shri Prakash Mishra and Radhey Shyam Singh, none of whom were produced by the employers. The witnesses by their own evidence utterly failed to prove the charges, as held by the Labour Court. 14. It is further submitted that the Labour Court has considered the entire evidence and reached a plausible conclusion that the charges were not established by the testimony of the two witnesses produced on behalf of the employers. It is also argued that the employers acquiesced to the order of the Labour Court dated 8.4.1991, discarding the domestic inquiry as unfair and vitiated. The employers have led evidence before the Labour Court to prove the charges, which strengthens the case of acquiescence to the said order. It is also argued that the employers acquiesced to the order of the Labour Court dated 8.4.1991, discarding the domestic inquiry as unfair and vitiated. The employers have led evidence before the Labour Court to prove the charges, which strengthens the case of acquiescence to the said order. At this stage, the employers cannot question the said order and can only say what they may in criticism of the Labour Court's award on merits relating to the charges, which the employers attempted to establish. 15. This Court has carefully considered the submissions advanced on behalf of both parties and perused the record. 16. This Court must remark that the order dated 8.4.1991, whereby the fairness of the inquiry has been held vitiated by the Labour Court, with a direction to the employers to produce evidence, is one that cannot stand scrutiny about its validity. The order dated 8.4.1999 reads (translated into English from Hindi): ''The employers have been given many opportunities to produce evidence, but they have not produce any evidence nor have they proved any document. I order that the domestic inquiry is not proper and fair and the employers are granted opportunity to adduce evidence in support of the charges on 2.8.1999.'' 17. The burden to prove that the domestic inquiry is one that is held in violation of principles of natural justice or the conclusions are not bona fide or the inquiry is unfair, lies on the workman; not the employers. The order passed by the Labour Court on 8.4.1999 to hold the inquiry vitiated places the burden on the wrong shoulder. By application of no principle or yardstick, could the employers be required to prove by evidence that the inquiry held was fair, just and bona fide. It is presumed to be so unless the workman proves to the contrary. 18. The aforesaid principle is well elucidated by the following remarks of the Delhi High Court in Uco Bank v. The Presiding Officer and another, 1999 SCC OnLine Del 657: 17. In the present case petitioner Bank has held the enquiry conducted against workman on the basis of which workman has been dismissed from service. It is the workman who has raised dispute against his dismissal. He has filed statement of claim contending that enquiry conducted against him is not proper and that there is violation of principles of natural justice. In the present case petitioner Bank has held the enquiry conducted against workman on the basis of which workman has been dismissed from service. It is the workman who has raised dispute against his dismissal. He has filed statement of claim contending that enquiry conducted against him is not proper and that there is violation of principles of natural justice. Therefore, normally it is for him to prove as to how enquiry conducted against him is illegal or invalid. 18. As stated above, this issue is to be treated as preliminary issue. Only if this preliminary issue is decided against the employer and it is held that the enquiry conducted is not valid, then the burden would shift and squarely lie upon the employer to show by adducing evidence on merits that the action taken against the workman was justified and for this Bank will have to lead evidence to establish that the charges levelled against the workman were proved. Insofar as question of validity of the enquiry is concerned, initial burden lies upon the workman to prove that the enquiry conducted against him was not fair or proper. 19. In the opinion of this Court, therefore, the Labour Court committed a manifest and patent error law in proceeding to hold the inquiry unfair by requiring the employers to establish that it was fair, just and bona fide. The consequential action of the Labour Court to require the employers to produce evidence and establish the charges would, therefore, be vitiated. 20. The next question, that arises, is whether the employers are entitled to question the order of the Labour Court dated 8.4.1999, holding the inquiry vitiated on ground that it is unfair and defective, while challenging the Labour Court's award passed after the adjudication case has reached conclusion. This issue is raised by the learned Counsel for the workman, relying on the principle of acquiescence to submit that once the order of the Labour Court, holding the inquiry unfair, has not been challenged when made, and to the contrary accepted by the employers by leading evidence in support of the charges before the Labour Court, they cannot turn around and question the validity of the order dated 8.4.1999, on the foot of which proceedings in the adjudication case have taken their course and reached a terminus in terms of the award. This submission, though attractive at the first blush, crumbles down in the face of authority to the contrary in Cooper Engineering Limited v. Shri P.P. Mundhe, (1975) 2 SCC 661 , where it was held: 22. We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication. 21. In view of the holding in Cooper Engineering Limited (supra), there is no force in the submission of the learned Counsel for the workman that the employers are not entitled to question the validity of the order dated 8.4.1999 passed by the Labour Court at the early stages of proceedings, holding the inquiry to be unfair, later on while challenging the award. Once the order dated 8.4.1999, holding the inquiry to be unfair, is held to be vitiated, the subsequent proceedings before the Labour Court on the foot of the said order, are also bad. The first question, that the Labour Court has to determine, is whether the inquiry that has been questioned as unfair by the workman, is indeed unfair and defective. This has to be done by requiring the workman to affirmatively prove that it is so. 22. The first question, that the Labour Court has to determine, is whether the inquiry that has been questioned as unfair by the workman, is indeed unfair and defective. This has to be done by requiring the workman to affirmatively prove that it is so. 22. If the workman succeeds in establishing the inquiry to be unfair or the result of a fundamentally flawed procedure, it could be the end of the matter, subject to the employers' right to lead evidence before the Labour Court on the merits of the charges against the workman. Should the contingency arise before the Labour Court that the inquiry is found vitiated on the ground of it being unfair or defective, it would then have to be seen whether the employers have, at the appropriate stage, elected to exercise their right to lead evidence as aforesaid. How and at what stage the employers could exercise that right, has been the subject-matter of consideration by the Constitution Bench of the Supreme Court in Karnataka State Road Transport Corporation v. Lakshmidevamma (Smt.) and another, (2001) 5 SCC 433 . The guidance on the issue is clear and by high authority, which need not be recapitulated. 23. In the result, this petition succeeds and is allowed in part. The impugned award dated 18.3.2010, published on 3.3.2011 passed in Adjudication Case No. 170 of 2007 by the Presiding Officer, Labour Court, U.P., Lucknow, is hereby quashed. The adjudication case is restored to the file of the Labour Court with a direction to re-hear the matter in accordance with the guidance in this judgment and pass an award afresh answering the reference. The Labour Court shall decide the reference within a period of six months of the date of receipt of a copy of this order. There shall be no order as to costs. 24. Let a copy of this order be communicated to the Presiding Officer, Labour Court, U.P., Lucknow, or whichever be the Court now exercising that jurisdiction, by the Registrar (Compliance).