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2024 DIGILAW 207 (ALL)

Toofani Yadav v. State of U. P.

2024-01-18

ROHIT RANJAN AGARWAL

body2024
JUDGMENT Rohit Ranjan Agarwal, J. Writ Petition No.32426 of 2019 has been filed by the workman assailing the award dated 13.12.2018 published on 14.02.2019 only pertaining to imposing punishment of stoppage of two annual increments and allowing only 20% backwages to the petitioner. 2. Writ Petition No.15450 of 2019 has been filed by the employer assailing the award dated 13.12.2018 made by the Labour Court, Mirzapur published on 14.02.2019. 3. Both the writ petitions were connected by the earlier order and are being heard together and decided by a common order. 4. Facts leading to filing of the petitions are that the petitioner-Toofani Yadav was employed on the post of Potman on 21.07.1987 in the Establishment of the respondent no.3 which is a company incorporated under the Companies Act, 1956. 5. Petitioner was promoted to the post of senior Potman. He was performing his duties as defined under the Standard Operative Procedure (SOP). It was on 13.10.2010, 14.10.2010 and 15.10.2010 when he was asked to perform the work of fitting carbon, he refused and said that it is not the work of senior Potman and the work of tapping is of C Grade Tapper, he was asked to sit. 6. A domestic inquiry was initiated against the petitioner, and a charge-sheet was issued on 19.10.2010. In the inquiry, he was found guilty and was dismissed from service on 01.03.2011. 7. The petitioner raised an industrial dispute and the matter was referred by the Government exercising power under Section 4K of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as "Act of 1947") to the Labour Court, Mirzapur. 8. Initially, a preliminary issue was framed on 11.04.2017, which is as under:- ^^D;k Jfed ds izdj.k esa lsok;kstdksa }kjk dh x;h ?kjsyw tkap mfpr ,oa oS/kkfud gS rFkk D;k tkap esa izkd`frd U;k; ds fl)karksa dk ikyu fd;k x;k gS\** 9. The Labour Court by order dated 29.09.2018 decided the preliminary issue framed above, which was in regard to whether the domestic inquiry conducted was valid and done following the procedure and principles of natural justice. The Labour Court found that as the petitioner refused to perform the work given by the employer and the inquiry conducted was according to the rules, no interference was required as due procedure was followed. 10. The Labour Court found that as the petitioner refused to perform the work given by the employer and the inquiry conducted was according to the rules, no interference was required as due procedure was followed. 10. On 13.12.2018, the Labour Court considered the question of quantum of punishment relying upon the provisions of Section 11A of the Industrial Disputes Act, 1947. The Labour Court made an award and reduced the quantum of punishment from dismissal to stoppage of increments of salary for two years with 20% backwages. The award made on 13.12.2018 has been challenged by both the employer and the employee, hence both these writ petitions. 11. Sri Gaurav Srivastava, learned counsel appearing for the workman submitted that the Labour Court exercising power under Section 6 (2-A) of the Act of 1947 had proceeded to pass the order imposing punishment of stoppage of two annual increments and allowed only 20% backwages and the punishment so awarded is shockingly disproportionate to the charges levelled against the petitioner. He then contended that the workman on 13.10.2010, 14.10.2010 and 15.10.2010 had not refused to work, but had only apprised the management that it was not his duty to do the work assigned to him as and it was the work of C Grade Fitter and Settler. 12. He has relied upon the decision of the Apex Court rendered in case of K.V.S. Ram v. Bengalore Metropolitan Transport Corporation, 2015 (144) FLR 994 . Relevant para 9 is extracted here as under:- "9. It is settled proposition of law that while considering the management's decision to dismiss or terminate the services of a workman, the Labour Court can interfere with the decision of the management only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. Considering the delay in completing the enquiry and the age of the appellant and the fact that similarly situated workmen were reinstated with lesser punishment, the Labour Court ordered reinstatement, in exercise of its discretion under Section 11A of the Industrial Disputes Act." 13. Reliance has also been placed upon the judgment of Co-ordinate Bench of this Court in case of Vigyan B. Saxena v. The Presiding Officer, Industrial Tribunal, Lucknow 1998 (78) FLR. 14. Reliance has also been placed upon the judgment of Co-ordinate Bench of this Court in case of Vigyan B. Saxena v. The Presiding Officer, Industrial Tribunal, Lucknow 1998 (78) FLR. 14. Opposing the writ petition, Sri Sunil Kumar Tripathi, learned counsel appearing for the employer/company has submitted that in the domestic inquiry conducted by the employer, it was found that the workman had refused to do the job given to him. The punishment of dismissal was given and the workman had approached the State, wherein the reference was made to the Labour Court. He contended that a preliminary issue was framed in regard to the fact that whether the domestic inquiry, which was conducted by the employer, was done following the principles of natural justice, the Labour Court had recorded clear finding to the effect that the due procedure was followed and from the statement so recorded, it was found that the workman had refused to work. He then contended that the Labour Court was not correct to pass the award on 13.12.2018 modifying the punishment of dismissal to stoppage of two annual increments with 20% of the backwages. 15. He then contended that according to Section 11A, satisfaction was to be recorded by the Tribunal or Labour Court, while modifying the quantum of punishment. Reliance has been placed upon the decision of Apex Court in case of Management of Bharat Heavy Electricals Ltd. v. M. Mani and Another, 2018 (1) SCC 285 , M. L. Singla v. Punjab National Bank, 2018 SCC Online SC 1585, M/s L & T Komatsu Ltd. v. N. Udayakumar, 2008 (1) SCC 224 and judgment of Apex Court rendered in case of U.B. Gadhe v. Gujrat Ambuja Cement (P) Ltd., (2007) 13 SCC 634 . 16. I have heard respective counsel for the parties and perused the material on record. 17. It is a case where the services of the workman was terminated by the employer on the refusal of the workman to perform the job given to him. It is admitted to both the parties that the workman was employed as a Potman initially, and was promoted to the post of senior Potman. 18. It was on 13.10.2010, 14.10.2010 and 15.10.2010 that he was given certain work to perform in the industry of the employer. It is admitted to both the parties that the workman was employed as a Potman initially, and was promoted to the post of senior Potman. 18. It was on 13.10.2010, 14.10.2010 and 15.10.2010 that he was given certain work to perform in the industry of the employer. On all the three occasions, he refused to perform the work and the matter was reported by the supervisor to the management. Domestic inquiry was initiated against the workman and he was given a charge-sheet on 19.10.2010. 19. Reply to the said charge-sheet was given and thereafter the inquiry was held and he was dismissed from service after the charges stood proved. The workman had raised an industrial dispute and the matter was referred to the Labour Court. 20. Initially, the Labour Court framed a preliminary issue in regard to the fact "whether the domestic inquiry conducted was valid and the due procedure was followed or not". After recording specific finding, the Labour Court held that the principles of natural justice was followed while the domestic inquiry was conducted and the order was passed on 29.09.2018. 21. It was on the question of quantum of punishment that the Labour Court on 13.12.2018 had proceeded to make the award relying upon Section 11A of the Industrial Disputes Act, 1947 and modified the punishment of dismissal to that of stoppage of increments for two years with 20% of the backwages. 22. The question which arises for consideration is as to the power of the Tribunal or Labour Court to modify the punishment awarded in a domestic inquiry to a workman. 23. Before adverting to deal with the issue, a cursory glance of the relevant provision of Section 11A is necessary, which is extracted as under: "[11A. 22. The question which arises for consideration is as to the power of the Tribunal or Labour Court to modify the punishment awarded in a domestic inquiry to a workman. 23. Before adverting to deal with the issue, a cursory glance of the relevant provision of Section 11A is necessary, which is extracted as under: "[11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.-Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.]" 24. Section 11A of the Act gives the power to the Tribunal, Labour Court and National Tribunal to give appropriate relief in case of discharge or dismissal of workman. 25. The aforesaid section provides that in case the Tribunal, Labour Court and National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may by its award, set aside the order of discharge or dismissal and direct the reinstatement of workman on such terms and conditions. 26. The word "satisfied" used in the aforesaid provision means that the satisfaction has to be subjective and the Court, Labour Court or Tribunal has to record the same before granting relief to a workman. 27. 26. The word "satisfied" used in the aforesaid provision means that the satisfaction has to be subjective and the Court, Labour Court or Tribunal has to record the same before granting relief to a workman. 27. Learned counsel appearing for the workman had laid stress upon the fact that Section 6 (2-A) of the Act of 1947 provides that the Tribunal or Labour Court may set aside the order of discharge or dismissal and reinstatement of work on such terms and conditions, if any, as the authority, making the award, may think fit or granting such other relief to workman including the lesser punishment of discharge or dismissal as the circumstances of the case may require. 28. According to counsel, the words of Section 6 (2-A) cannot be interpreted to mean that the Labour Court was to record a subjective satisfaction before reducing the quantum of punishment, and it is not pari materia to Section 11A of the Central Act. 29. The argument raised by the workman counsel is totally misplaced as the power given to the Labour Court or Tribunal cannot be used blatantly, and in case the quantum of punishment is modified, the Tribunal or Labour Court, as the case may be, has to record its subjective satisfaction. The power is not unbridled, but subject to recording of satisfaction. Both the Central and the State Act provide power to Labour Court to interfere with punishment of discharge or dismissal, but subject to recording reasons. 30. Moreover, in the present case the Labour Court itself had already decided the preliminary issue on 29.08.2018 and had found that the domestic inquiry was conducted in a fair manner giving opportunity to the workman and principles of natural justice having been followed. 31. Once, such finding was recorded by the Labour Court, the award made subsequently without recording any subjective satisfaction as to why the quantum of punishment was modified and lesser punishment was given, does not appeal to Court and the Labour Court should have recorded a specific finding for awarding lesser punishment. 32. 31. Once, such finding was recorded by the Labour Court, the award made subsequently without recording any subjective satisfaction as to why the quantum of punishment was modified and lesser punishment was given, does not appeal to Court and the Labour Court should have recorded a specific finding for awarding lesser punishment. 32. As the Hon'ble Apex Court in case of Bharat Heavy Electricals Ltd. (supra) had clearly held that once in the departmental inquiry, the punishment of dismissal was awarded, the quantum needs no interference, unless the Labour Court records finding as to the punishment given to the workman was disproportionate to the gravity of the charges levelled against him. Relevant paras 18 and 19 are extracted here as under:- "18. In our opinion, once the Labour Court upheld the departmental enquiry as being legal and proper then the only question that survived for consideration before the Labour Court was whether the punishment of "dismissal" imposed by the appellant to the respondents was legal and proper or it requires any interference in its quantum. 19. In other words, the Labour Court should have then confined its enquiry to examine only one limited question as to whether the punishment given to the respondents was, in any way, disproportionate to the gravity of the charge levelled against them and this, the Labour Court should have examined by taking recourse to the provisions of Section 11A of the Industrial Disputes Act, 1947 (in short "the Act") and the law laid down by this Court in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. [Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd., (1973) 1 SCC 813 . It was, however, not done thereby rendering the order of the Labour Court legally unsustainable." 33. It has been a constant view of the Hon'ble Apex Court that while exercising power under Section 11A of the Central Act, the Labour Court or the Tribunal, as the case may be, has to record finding that the punishment awarded was disproportionate to the gravity of charges. Once, such finding has not been recorded by the Labour Court, the quantum of punishment cannot be modified, while making the award. 34. Once, such finding has not been recorded by the Labour Court, the quantum of punishment cannot be modified, while making the award. 34. In the instant case, the Labour Court while making the award had not recorded any such subjective satisfaction that the punishment of dismissal awarded to the workman was disproportionate to the charges levelled against him. 35. The argument from the workman side to the extent that not working on three occasions would not lead to punishment of the dismissal cannot be accepted as once the workman had accepted the job and was working as senior Potman in the industry of the employer, he was bound to perform the work allotted to him. The refusal of work by him on three occasions amounts to disobedience which can lead to many more such incidents on part of the other workmen in the industry, and it will not be possible for the employer to run his industry if the workmen working there refused to comply the orders of the superior and the work given to them are not performed. 36. Considering the facts and circumstances of this case, this Court finds that the award dated 13.12.2018 made by the Labour Court, Mirzapur published on 14.02.2019 is unsustainable in the eye of law and the same is hereby set aside. 37. The writ petition filed by the employer being Writ Petition No.15450 of 2019 is hereby allowed. 38. Writ petition filed by the workman being Writ Petition No.32426 of 2019 fails and is hereby dismissed.