Hindustan Electro Graphite Ltd. vs Member Judge, Industrial Court of M.P. Bench and Another

K.K. Trivedi, J.—This writ petition under Article 227 of the Constitution of India is directed against the order dated 27.10.2012, passed by the Industrial Court Bench at Bhopal, by which the appeal filed by the respondent has been allowed and the order of the Labour Court rejecting the claim of the respondent No. 2 is set aside and the respondent No. 2 is granted the benefit of reinstatement in service, with 75% back-wages. The facts giving rise to this petition are that the respondent No. 2 was given an offer on 10.7.1976 by the petitioner employer for appointment as Stenographer (English) in a consolidated pay of Rs. 550 + 50 allowance. Pursuance to the said offer the respondent No. 2 joined the services on 14.7.1976. Terms and conditions of employment were fixed by memo dated 22.7.1976. It was categorically provided in the terms and conditions that the appointment would be on a probation of six months. The posting was to be made at the present project site at Mandideep (near Bhopal), but the services of the respondent No. 2 were transferable to any other unit of the Company existing, or which may be set up in future. After putting in some service, an order of transfer was issued to the respondent No. 2 on 29.8.1983 transferring him to Bombay. The said order was challenged before the Labour Court by the respondent No. 2 by filing Case No. 195/MPIR/1983. The interim stay was refused by the Labour Court, therefore, an application was filed before the Industrial Court, Indore, seeking interim protection. Initially an interim order was granted in favour of the respondent No. 2, but the said order was withdrawn on 2.2.1984 and the Labour Court was directed to expedite the hearing of the case. During pendency of the aforesaid, a charge-sheet was issued to the petitioner alleging that he had not complied with the order in appropriate manner and only after giving joining at the transferred place, the respondent No. 2 left the office thereafter and remained absent from duty. After conducting the enquiry, since the report was given that the respondent No. 2 was guilty of the misconduct, a penalty of dismissal from service of the Company with immediate effect was imposed vide order dated 10/11.1.1985. The respondent No. 2 challenged this order by filing a fresh case before the Labour Court at Bhopal, which was registered as Case No. 52/MPIR/1985. The replies in both the cases were filed by the petitioner opposing the claims made by the respondent No. 2. After the trial, the Labour Court passed the order in both the cases and allowed the claim of the respondent No. 2 vide order dated 31.1.1997. An appeal was preferred by the petitioner against both the awards before the Industrial Court, which came to be decided on 30.4.2001 The Industrial Court reached to the conclusion that both the cases were not properly decided by the Labour Court as the first case relating to transfer was required to be decided and thereafter the case of dismissal was to be decided. After setting aside the order passed by the Labour Court, the matter was remitted back to the Labour Court by the Industrial Court, Before the Labour Court, the respondent No. 2 withdrew his case against transfer and made an application for amendment in pending case of dismissal and amended the pleadings in the case registered subsequently as Case No. 165/MPIR/2001 and challenged the order of transfer in the said proceedings. The said case was decided against the respondent No. 2 and the appeal was preferred before the Industrial Court. Since the Industrial Court has allowed the appeal, this writ petition is required to be filed.

Learned counsel appearing for the petitioner has contended that the Labour Court had rightly passed the order. The Labour Court has examined the correctness of the order of transfer so issued by the petitioner. Since there was an agreement of service in between the petitioner and the respondent No. 2 and in the said agreement condition of transfer was also mentioned, it was rightly held that the respondent No. 2 could have been transferred to the office of the petitioner at Bombay. The respondent No. 2 was duty bound to join at the Bombay office, but even after giving the joining, he absented himself from the duty unauthorisedly. As per the M.P. Employment (Standing Order) Rules, 1963 (hereinafter referred to as the Rules of 1963 for brevity) and the Standard Standing Order, there is a procedure prescribed for imposition of such a penalty in case of a misconduct and unauthorised absence for a period of more than ten days is a major misconduct for which a major punishment can be given, The enquiry was conducted in lawful manner. The documentary evidence was produced by the petitioner to show that in fact the respondent No. 2 was avoiding to perform the duties at Bombay and though the work was available for him, his joining was accepted, he absented himself from duty unauthorisedly. This being so, the order was rightly passed by the Labour Court and without there being any perversity in the findings recorded by the Labour Court, such an order has been set aside by the Industrial Court, therefore, the order impugned is bad in law and is liable to be set aside.

Per contra, it is contended by learned counsel for the respondent No. 2 that the transfer was not authorised as transfer itself is not prescribed under the Standard Standing Order Only a shift transfer is prescribed and not a transfer from one office to another The terms and conditions could have been formulated by issuing the order of appointment on the date when the respondent No. 2 gave his joining in the employment of petitioner. A subsequent order so issued in this respect would not become an order of appointment nor any terms and conditions were accepted by the respondent No. 2, inasmuch as, he has not signed the said document. Even when it was specifically said that on the second copy, signatures of the respondent No. 2 in acknowledgement of such conditions were to be obtained, no such signed document was produced and, therefore, it could not have been said that the respondent No. 2 has accepted the term of transfer away from Mandideep to any other place, wherever the office of the petitioner was situated. In view of this, the transfer was in fact in violation of the provisions and the terms and conditions of the services of the respondent No. 2. He gave his joining at Bombay, but was told by the officer that no work was available for him as a person was already working there. Only an office was there owned by the petitioner and there was no work available for the respondent No. 2, therefore, he was left with no option, but to come back This being so, the order of transfer itself was bad in law. The period of absence is only because of that order of transfer and, as such, the dismissal from service of the respondent No. 2 was also bad in law. The Labour Court has not rightly appreciated the evidence available on record and has reached to erroneous findings which have been set aside by the Industrial Court by allowing the appeal of the respondent No. 2 in appropriate manner. Thus, it is contended that the order impugned needs no interference and the writ petition is liable to be dismissed.

Heard learned counsel for the parties at length and perused the entire record,

First of all, it is to be seen whether the respondent No. 2 was under an obligation to carry out the order of transfer or not? Much debate has been put on such an issue. However, it is contended by learned counsel for the petitioner that since Standard Standing Order nowhere prescribes the transfer, the employer was free to prescribe such a condition in the order of appointment. Taking this Court to the Standard Standing Order as a whole, learned counsel for the petitioner pointed out that Standard Standing Order- 6 prescribes shift working. It is with respect to the working in a particular office of the factories and not otherwise as is contended by learned counsel for the petitioner. The change prescribed under Clause (e) of the Standard Standing Order 6 is relating to a particular office and, as such, there is nothing prescribed in the Standard Standing Order for transfer of an employee. It is contended by the learned counsel for the petitioner that the respondent No. 2 was given a letter of offer as is clear from perusal of Annx. P/1, which he accepted and though the date by which the joining was to be given was 13.7.1976, he gave the joining on 14.7.1976. It was nothing but an offer extended which was accepted and, therefore, it culminated in an agreement of service for which the terms were reduced in writing only on 22.7.1976 specifically prescribing the period of probation as also the posting of the employee, in the said condition, it was categorically prescribed thus:--

Posting

Normally you will be functioning at the present project site at Mandideep (near Bhopal), but your services are liable to be transferred to any other unit of the company, existing or which may be set up in future, or its associated concerned in which case you will not claim any additional remuneration or allowance.

It is contended that since the petitioner was having the business of export of its goods also and for the said purposes had established an office at Bombay, the said fact was taken note of and as per requirement, the services of the respondent No. 2 were transferred to Bombay office of the petitioner. This was as per the specific condition mentioned. The exigency was shown in the order of transfer dated 27.1.1983 (Annx. P/3) and, therefore, the said order was binding on the respondent No. 2. It is contended that merely because such a term and condition was not signed on the second copy, it could not be said that the said conditions were not agreed upon by the respondent No. 2 specially when he made the demand of his confirmation only on the strength of such terms and conditions mentioned. The respondent No. 2 was not to allow to agree to conditions suitable to him as per his choice and to refuse to accept other conditions mentioned in the said memo dated 22.7.1976. This being so, it is contended that the Labour Court had rightly looked into this piece of evidence, has taken note of the fact that in the evidence, such an application made by the respondent No. 2 claiming benefit of confirmation in terms of the conditions mentioned in memo dated 22.7.1976 and confirmation order passed in the aforesaid terms and conditions were exhibited in evidence by the petitioner as Ex. D/16 and Ex. D/17. Thus, it was rightly ''held that the transfer, was a condition of service and, as such, it could not be said to be an illegal act of the petitioner, Such a finding of the Labour Court had not rightly been appreciated by the Industrial Court while passing the order and erroneously it has been held that the order of the Labour Court in this respect was bad because the said terms and conditions were never accepted by the respondent No. 2. The Industrial Court has simply seen the offer of appointment and has accepted the same as tie order of appointment. Thus, it is said hat the finding, contrary to the evidence available on record, was recorded by the Industrial Court while reversing the well reasoned order of the Labour Court and as such, the order impugned is bad in law.

It is the contention of learned counsel for he respondent No. 2 that it was rightly appreciated by the Industrial Court that here was no such condition of transfer agreed by the respondent No. 2, inasmuch as, the letter of such condition was not accepted or acknowledged by the respondent No. 2. it was also considered by the Industrial Court that the transfer of the respondent No. 2 was not justified. In case, there was no such condition of transfer, finding was not to be recorded by the Labour Court in this respect and, therefore, such rightful appreciation of the evidence done by the Industrial Court need not be interfered with. First of all, it is to be seen that the respondent No. 2 himself was claiming certain benefits on the strength of certain conditions mentioned in the memo dated 22.7.1976. This was not only specifically stated, but the evidence to that extent was produced by the petitioner. The application submitted by the respondent No. 2 seeking an order of conformation was only on the basis of such a condition mentioned in the memo dated 22.7.1976. The specific question in this respect was asked in the evidence and answer to the same was given by the respondent No. 2. The evidence to this extent is available on record, but it has not been properly appreciated by the Industrial Court. The reasoning were rightly given by the Labour Court to the effect that the order of transfer of the respondent No. 2 was rightly issued. In fact, the issue relating to the transfer of the respondent No. 2, though was amalgamated in the subsequent case filed by the respondent No. 2 after withdrawal of his case filed against the order of transfer, but in terms of the order of remand issued by the Industrial Court, the said issue was required to be decided first. The additional issue was framed in this respect by the Labour Court and the entire consideration was done. The statements of the respondent No. 2 were marshalled by the Labour Court and the fact admitted by him in his cross-examination were noted down. After recording all such evidence, it was held categorically by the Labour Court that the respondent No. 2 was rightly transferred and there was nothing available on record to indicate that such an order of transfer was illegal in any manner. The respondent No. 2 was not only permitted to join, but was also directed to discharge the duties, but he absented himself from the office at Bombay without any justified reason, This particular aspect was also asked in the cross-examination of the respondent No. 2 and he admitted that he was given a letter of joining on 18.7.1984 Ex. P/93. This Ex. P/93 indicates that the respondent No. 2 was permitted to join the office work at Bombay office.

As against this appreciation of evidence, the Industrial Court has very cursorily said that the letter dated 22.7.1976 was not applicable on the respondent No. 2. The fact relating to such a document exhibited was not appreciated. On the other hand, the facts which were not proved by any evidence by the respondent No. 2, were taken note of and it was held that the findings recorded by the Labour Court with respect to application of the conditions mentioned in order dated 22.7.1976 were perverse as the said conditions were not binding on the respondent No. 2 nor could he be transferred in view of the aforesaid finding. The findings of the Labour Court were reversed in this manner by the Industrial Court. In the considered opinion of this Court, such approach of the Industrial Court cannot be accepted. True it is that the Industrial Court was the appellate Court and was having the power to appreciate the evidence available on record, but a perverse finding was not to be recorded by the Industrial Court ignoring the evidence available on record which was rightly appreciated by the Labour Court, To this extent, the order of the Industrial Court is bad in law and is liable to be set aside.

Now the other question is whether the departmental enquiry against the respondent No. 2 was rightly conducted and whether he could be terminated from service by the petitioner? The allegations relating to the departmental enquiry, have been raised, issues have been framed in that respect by the Labour Court. Issue No. 2 framed by the Labour Court relates to the departmental enquiry. It was admitted by the respondent No. 2 that after joining at Bombay Office on 17.7.1984 and leaving the said office on 18.7.1984, he never went back to Bombay office. Once the joining of the respondent No. 2 was accepted, it was to be treated as if the respondent No. 2 was working at Bombay. However, the charge sheet issued from the Bombay office of the petitioner was served on the respondent No. 2 at Bhopal through the office at Mandideep. He has admitted receipt of the charge sheet and conduct of enquiry at Bombay office of the petitioner. It is the evidence produced by the petitioner that despite the information about the proceedings of the departmental enquiry, neither the respondent No. 2 appeared before the enquiry officer nor he made any application for granting him any facilities of T.A. or DA for taking part in the departmental enquiry. After marshalling the evidence available on record, the Labour Court reached Ho the conclusion that the domestic enquiry was rightly conducted ex parte against the respondent No. 2. This finding of the Labour Court has been reversed by the Industrial Court holding that since the order of transfer of the respondent No. 2 is found to be illegal, his dismissal from service only on account of remaining absent after joining on the transferred place, cannot be sustained. However, such a finding of the Industrial Court again cannot be approved in view of the fact that the evidence was not considered, no marshalling of the finding of the Labour Court was done and cursorily only this much was said that the respondent No. 2 could not have been dismissed from service in such an enquiry. The approach of the Industrial Court was, thus, not in accordance to the law.

True it is that in a petition under Article 227 of the Constitution of India, this Court is not required to appreciate the evidence, but it is to be seen that if perverse findings are recorded by the Industrial Court, while reversing the order passed by the Labour Court on the rightful appreciation of evidence, this Court would be required to look into such evidence to adjudge whether the findings were rightly recorded by the Labour Court or not. The statements of witnesses have been examined only with a view to ascertain whether the rightful appreciation was done by the Labour Court or not. As is submitted by learned counsel appearing for the respondent No. 2, in the case of Mohd. Yunus Vs. Mohd. Mustaqim and Others, re-appreciation of evidence is not permissible in a writ petition under Article 227 of the Constitution of India. The Apex Court has specifically held that the High Court would not be correct in correcting an error of law in the order of the subordinate Court. However, if an order passed by the lower Appellate Court is totally ignorant of the findings recorded by the Labour Court, and the order of the Labour Court seems to be more appropriate, no restriction has been put by the Apex Court that even in such circumstances, the order of the Labour Court cannot be affirmed in exercise of power under Article 227 of the Constitution of India by this Court by setting aside the order of the Industrial Court. For the reasons stated above, it is clear that the law as laid down by the Apex Court would not be helpful to the respondent No. 2 in the present case. In fact, the evidence is examined by this Court only for the purposes of verifying whether the findings could have been given after appreciation of such evidence by the Labour Court as was given by it or not Thus, it cannot be said that the power under Article 227 of the Constitution of India is not to be exercised in these circumstances.

Consequently, the writ petition is allowed. The order passed by the Industrial Court on 27.10.2004 Annx. P/25 is, hereby set aside and the order passed by the Labour Court dated 16.1.2004 Annx P/23 is affirmed. However, the amount paid to the respondent No, 2 as an interim measure, towards the compensation in compliance of provisions of Section 67 of MPIR Act, would not be recovered from him. The writ petition is allowed to the extent indicated hereinabove, There shall be no order as to costs.