Jagdish Chander vs State of Haryana and Others

G.S. Singhvi, J.—This case is yet another example of misuse of the authority vesting in the competent officer of the Government u/s 10 of the Industrial Disputes Act, 1947.

The petitioner whose service was terminated by the employer (respondent No. 2) w.e.f. 6.1.1995 has been forced to seek intervention of this Court because Joint Secretary, Government of Haryana Labour Department, adjudicated upon his demand and refused to make reference of the dispute regarding termination of the service of the petitioner.

There is no controversy between the parties the petitioner had served under respondent No. in Tubular Section since the year 1977. On an allegation of long absence from duty (117-1/2 days during the year 199-93), a domestic enquiry was held by the employer and after holding the petitioner guilty of misconduct as defined in clause 37(4) of the Certified Standing Orders, the employer dismissed him from service. The petitioner served a notice of demand dated 28.2.1995 which led to the initiation of conciliation proceedings. The employer appeared before the Conciliation Officer through the Factory Manager and filed a detailed reply dated 12.4.1995 and pleaded that the workman was a habitual absentee and, therefore, the demand made by him should be rejected.

It appears that the Labour-cum-Conciliation Officer submitted failure report u/s 12(5) of the 1947 Act and thereafter Joint Secretary issued the impugned order refusing to make reference of the dispute.

It would be profitable to reproduce the extract of the order passed by the Joint Secretary :-

"You are hereby informed on the subject cited above that the Government does not consider your case fit for sending to the court for judicial decision because from enquiry it has come to notice that there were allegations of absence from duty against you. Allegations levelled against were proved in the domestic enquiry and your services were terminated after observing all the formalities and after affording opportunity to you. You remained absent from duty for 117 days from April, 1992 to March, 1993 during the period of one year which is a misconduct under clause 37(4) of the Standing Orders of the Company."

Shorn off all details, we are convinced after a bare perusal of order Annexure P2, that the Joint Secretary Government of Haryana Labour Department as a quasi judicial authority, usurped the rote of Labour Court/Industrial Tribunal and made adjudication on the dispute raised by the workman by holding that the allegations of absence levelled against him has been proved in the domestic enquiry held by the employer after observing all formalities and as the allegations. constituted a misconduct under clause 37(4) of the Standing Orders, the case was not fit for sending to the Court for judicial decision.

In State of Bombay Vs. K.P. Krishnan and Others, , their Lordships of the Supreme Court held that while deciding the issue whether a dispute raised by the workman/union should be referred for adjudication or not, the Government exercises administrative power.

The same view was reiterated in Bombay Union of Journalists and Others Vs. The State of Bombay and Another, .

In Ram Avtar Sharma and Others Vs. State of Haryana and Another, , and a host of other decisions, the same proposition of law has been reiterated.

It is also a settled principle of law that while exercising the power u/s 10(l)(c) of the 1947 Act, the Government can examine the issue about the existence or apprehension of an industrial dispute and nothing more. The Government can decline to make a reference only where it comes to a conclusion that the dispute sought to be raised is frivolous vexatious and belated and except in these types of cases, it does not lie the domain of the Government to decline reference of the dispute.

In Ram Avtar Sharma v. State of Haryana (supra) the Supreme Court took note of Section 11-A of the 1947 Act which has been incorporated in the Act by Industrial Disputes (Amendment) Act 1971 and observed :

"The last aspect has assumed considerable importance after the introduction of Section 11-A in the Industrial Disputes Act by Industrial Disputes (Amendment) Act 1971 with effect from December 15, 1971. It confers power on the Tribunal not only to examine the order of discharge or dismissal on merits as also to determine whether the punishment was commensurate with the gravity of the misconduct charged. In other words, Section 11-A confers power on the Tribunal/Labour Court to examine the case of workman whose service has been terminated either by discharge or dismissal qualitatively in the matter of nature of enquiry and quantitatively in the matter of adequacy or otherwise of punishment."

The provisions of Section 11-A of the 1947 Act came to be considered by the Supreme Court in The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, , and after a detailed review of the judgemade law which prevailed prior to the introduction of Section 11-A, it has been held :-

"The Labour Court/Tribunal is now possessed with the power not only to go into fairness and propriety of the enquiry and action taken by the employer, but, also to evaluate the evidence produced during the course of domestic enquiry or before the Labour Court/Industrial Tribunal and record a finding on the merits of the allegation of misconduct levelled against the workman. In a given case it is open to the Labour Court/Industrial Tribunal to record a conclusion that the finding recorded by the employer on the allegation of misconduct levelled against the workman is not borne out from the evidence produced during the course of domestic enquiry. Even in cases where the enquiry held by the employer is found to be fair and- proper and finding of misconduct recorded during such enquiry is sustained by the Labour Court/Industrial Tribunal, it is now permissible for such an adjudicating body to go into the quantum of punishment awarded by the employer and to hold that it is unjust, arbitrary and shockingly disproportionate. It is also open to such adjudicating body to substitute the penalty of dismissal or discharge by lesser punishment on such terms and conditions as it may think fit."

Principle of proportionality of punishment has been recognised even in the case of a civil servant as would appear from the decisions of their Lordships of the Supreme Court in Bhagat Ram v. State of Himachal Pradesh 1983 (3) S.L.R. 626 and in Ex. Naik Sardar Singh v. Union of India AIR 1992 S.C. 417.

This being the legal position, we are convinced that while considering a demand made by the workman together with the failure report for the purpose of making reference u/s 10(l)(c) of the 1947 Act it is not open to the competent authority to go into the merits of the allegations levelled against the workman or to make an adjudication of the dispute sought to be raised by the workman. It is precisely what was held in Ram Avtar Sharma v. State of Haryana (supra) where too the Government declined to make reference on the ground that the workman was found guilty in the domestic enquiry held in accordance with the principles of natural justice and the action of the employer was justified.

Recently the matter has been considered at length by this Court in C.W.P. No. 594 of 1996 (Punjab Anand Lamp Employees Union, Mohali v. Punjab Anand Lamp Industry Ltd. Mohali and Anr.) decided on 22.2.1996 and it has been held that ordinarily the Government does not have any power to decline to make a reference. It has also been held that the Government cannot act as a quasi-judicial body and decide the dispute as if it was vested with the power of adjudication.

For the reasons mentioned above, the writ petition is allowed. Order Annexure P2 is declared illegal and is hereby quashed. Ordinarily this Court has been giving a direction to the Government to reconsider the question of making a reference of the dispute but keeping in view the fact that there is a consistent and contemptuous approach adopted by the authorities of the Labour Departments of the Government of Punjab and Haryana in declining a reference of the dispute involving discharge or dismissal of a workman by way of punishment, we do not find it appropriate to call upon the Government to reconsider the dispute for the purpose of making a reference. We, therefore, direct the Government to make a reference of the dispute within two months from today.

Taking cognizance of the fact that this Court is burdened with hundreds of similar type of petitions every year due to apparently arbitrary, casual and lope- sided approach adopted by the authorities to ignore- the law laid down by the Supreme Court and this Court we deem it appropriate to saddle with costs the officer who held the post of Joint Secretary, Labour Department Government of Haryana, on 21.12.1995. Accordingly, the said officer is directed to pay a costs of Rs. 5000/- which shall be deposited by him with the legal Aid Board, Haryana. The Government is restrained from reimbursing the officer in any manner whatsoever. The Secretary Legal Aid Board, Haryana is directed to report to the Court whether the amount of Rs. 5000/- has been deposited as per the direction given hereinabove.