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Judgment
Vivek Singh Thakur, J.
1.Present petition has been instituted assailing order, dated 15th January, 2008, passed by H.P. Industrial TribunalÂcumÂLabour Court, Shimla (for
short “Labour Courtâ€) whereby an application preferred by employer (respondent No. 2) under Section 33 (2) (b) of Industrial Disputes Act, 1947
(for short “ID Actâ€) for approval of dismissal of petitioner herein with effect from 24th February, 2001 after completion of domestic inquiry
against him, upholding the findings of management of respondent No. 2 qua dismissal of the petitioner has been allowed (for short “impugned
orderâ€).
Petitioner had been working as a workman with respondent No. 2 since 5th January, 1978. On 1st July, 2000, he was served with a charge sheet
(Annexure PÂ1) alleging therein that on 30th June, 2000, he left his seat at 11.45 a.m. and forcibly entered in new unit of the factory, created
unnecessary nuisance alongwith other workers and warned the officers to advice their staff failing which dire consequences would follow and
thereafter, on the same day, at 5.00 p.m., he alongwith his companions beat one Mr. Ravinder Tiwari with stone and fist blows while he was going
home on his scooter after his duty hours. Petitioner was suspended with immediate effect during inquiry with a direction to file response to the charge
sheet within three days.
Petitioner filed response (Annexure PÂ2) on 3rd July, 2000, refuting the allegations of charge sheet stating that charge sheet was illegal, concocted,
unconstitutional and contrary to facts based on wrong information. It was further stated that on 30th June, 2000, when he was taking his lunch after
working till lunch time, he received information that Sheetla Parsad had been beaten up by foreman whereupon he went there and wrote a complaint
of Sheetla Parsad addressing the management, got it signed by workers, handed over the same to Managers during lunch time and returned to his own
department. It was also stated that allegation about beating Ravinder Tiwari was also false, baseless and wrong and had been labelled for assisting
Sheetla Parsad in writing his complaint and getting the signatures of workers thereon, who were present at the time of incident. It was also stated that
he was Joint Secretary of Kapda Mazdoor Lal Zhanda Union and the Union had served a demand notice to Managers and the charge sheet might
have been for that reason also.
On finding the reply filed by the petitioner unsatisfactory, management appointed Inquiry Officer, who submitted exÂparte inquiry report (Annexure
PÂ10) on 8th January, 2001 stating therein that information of date of inquiry was sent to petitioner on 18 th August, 2000 directing him to appear
before the Inquiry Officer on 25th August, 2000, but the said letter was received back with endorsement that no such person was residing there.
Thereafter, information was again sent for the dates fixed on 6th October, 2000 and 14th October, 2000, however, the petitioner did not appear before
the Inquiry Officer whereupon last opportunity was granted to petitioner to appear on 6th January, 2001. For service of petitioner notices were pasted
on the gate of the factory and notice for 6th January, 2001 was also published in daily newspaper Dainik Tribune on 3rd January, 2001, but the
petitioner did not join the inquiry whereupon exÂparte inquiry was conducted. Mr. Balbir Singh Thakur presented the case on behalf of respondent
No. 2ÂCompany and examined the witnesses in support of charge sheet. After going through the statements of witnesses and record, the Inquiry
Officer submitted his report admitting the allegations of charge sheet to be true. Inquiry Officer had also informed petitioner vide registered letter,
dated 10th January, 2001 (Annexure PÂ11) about submission of inquiry report, dated 8th January, 2001.
After receiving the inquiry report, management of respondent No. 2 decided to dismiss services of the petitioner and sent registered AD to him on
23rd February, 2001 with information that as an industrial dispute under general reference was pending before the Labour Court, Shimla in which
petitioner was also one of a workman, respondent No. 2 had been filing an application under Section 33 (2) (b) of the ID Act for approval to dismiss
petitioner as a part of the same transaction and one month salary was also sent to petitioner alongwith the notice.
In application preferred by respondent No. 2 before the Labour Court (Annexure PÂ3), petitioner was served. After service, petitioner filed a reply
(Annexure PÂ4) to the said application, whereafter parties were permitted to lead evidence in support of their respective claims. Respondent No. 2Â‐
Company examined Shri A.K. Sinha as PWÂ1 and petitioner appeared as RWÂ1 (Annexure PÂ5).
After considering the material placed before it, the Labour Court approved the finding of the management of respondent No. 2ÂCompany upholding
the dismissal of petitioner vide the impugned order.
Present petition has been preferred by the petitioner mainly on the ground that he was not granted opportunity of being heard and exÂparte inquiry
was conducted without effecting service upon him properly despite the fact that he was available in Baddi area and very much agitating for rights of
workmen, which is evident from copies of judgments (Annexures PÂ13/1 to PÂ13/8) passed by Judicial Magistrates in various criminal cases lodged
by the management of respondent No. 2ÂCompany against petitioner and other Union leaders wherein petitioner was duly served and defended the
said criminal proceedings. Copies of summons issued by the Criminal Courts served upon petitioner during the period in which inquiry was initiated and
completed have also been placed on record as Annexures PÂ14/1 to PÂ14/6 in order to substantiate that respondent No. 2ÂCompany had not made
any serious and effective efforts to serve petitioner during inquiry so as to deprive his valuable right to defend him.
It is contended on behalf of petitioner that there was no material before Inquiry Officer as well as management of respondent No. 2Âcompany so
as to return finding against petitioner and to dismiss him pursuant thereto. Further that petitioner has been deprived from leading evidence in his
support and to place material before the Inquiry Officer enabling him to refute the charge sheet and to prove his defence. It is also contended that
alleged notices (Annexure PÂ7 and PÂ8) were never served upon petitioner and document Annexure PÂ6 is not having necessary details to prove its
posting except the address of petitioner thereon.
It is further contended on behalf of the petitioner that notice in newspaper (Annexure PÂ9), which was required to be published by Inquiry
Officer, was published by respondent No. 2, i.e. Birla Textile Mills. Further that the said notice was published in a newspaper which was not having
wide circulation in the area. Also that pasting of notices on the gate of premises of factory cannot be termed as effective and proper service of
petitioner.
Relying upon the judgment rendered by apex Court in case titled as Yallawwa (Smt) versus Shantavva (Smt), reported in (1997) 11 Supreme
Court Cases 159, it is contended on behalf of the petitioner that substituted service has to be resorted as the last resort when respondent cannot be
served in ordinary way and the Presiding Officer is satisfied that there is reason to believe that respondent is keeping out of the way for the purpose
of avoiding service or that for any other reason the summons cannot be served in the ordinary way. It is argued that in present case, substituted
service was resorted to without adhering to the basic principle for adopting substituted service in place of service through ordinary course and, thus,
for want of proper service of petitioner, inquiry report deserves to be set aside.
Reliance has also been placed by the petitioner on pronouncement of apex Court in case titled as Union of India and others versus Dinanath
Shantaram Karekar and others, reported in (1998) 7 Supreme Court Cases 569, wherein the apex Court has held that a single effort for service of
respondent cannot be termed to be sufficient and service of notice sought to be effected on respondent by publication in a newspaper without making
any earlier effort to serve him personally by tendering show cause notice either through office peon or by registered post was held illegal. It has
further been observed that there was nothing on record to indicate that the newspaper, in which show cause was published, was a popular newspaper
which was expected to be read by public in general or it had a wide circulation in the area or the locality where the respondent lived and, therefore,
the respondent was held not to be served.
Placing reliance on judgment of the apex Court in case titled as V.N. Bharat versus Delhi Development Authority and another, reported in (2008)
17 Supreme Court Cases 321, it has been contended on behalf of petitioner that in view of specific stand of petitioner that he was never informed or
served with any notice notifying the date, time and place of alleged inquiry and the notice was published in a newspaper not widely circulated in the
area where the dispute arose, the statutory presumption of service under Section 114 Ill. (f) of Evident Act is not available in present case.
It is also argued on behalf of petitioner that in para 8 of its application (Annexure PÂ3) filed before the Labour Court, respondent No. 2Â‐
Company itself has referred that there were other references bearing No. 96/2000, 129/2000, 56/2000 and 152/2000 which were pending adjudication
before the Labour Court and, therefore, in view of proviso to Section 33 (2) (b) of ID Act, respondent No. 2Â Company was not entitled to discharge
or dismiss the petitioner as respondent No. 2ÂCompany had dismissed his services vide order, dated 24th February, 2001 and the application
(Annexure PÂ3) had also been filed on the very same day whereas proviso to Section 33 (2) (b) of ID Act provides that no such workman shall be
discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before
which the proceeding is pending for approval of action taken by the employer.
Relying upon judgments of apex Court in cases titled as Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. versus Ram Gopal Sharma and others,
reported in (2002) 2 Supreme Court Cases 244; and Indian Telephone Industries Ltd. and another versus Prabhakar H. Manjuare and another,
reported in (2003) 1 Supreme Court Cases 320, it has been contended that nonÂcompliance of proviso to Section 33 (2) (b) of ID Act has rendered
the dismissal of petitioner void and inoperative.
Learned counsel for respondent No. 2ÂCompany, while placing reliance on pronouncement of apex Court in case titled as Jagdish Lal and others
versus State of Haryana and others, reported in (1997) 6 Supreme Court Cases 538, has pleaded that present petition deserves to be dismissed for
unexplained and inordinate delay and laches as the impugned order was passed by the Labour Court on 15th January, 2008 and the instant petition was
filed in the Court on 12th August, 2008.
Relying upon judgments of the apex Court in A.P. SRTC versus Raghuda Siva Sankar Prasad, reported in (2007) 1 Supreme Court Cases 222;
and Divisional Controller, Karnataka State Road Transport Corporation versus M.G. Vittal Rao, reported in (2012) 1 Supreme Court Cases 442, it has
been canvassed that judicial review under Article 226 of the Constitution of India on findings returned by a Tribunal on the basis of material placed
before it is available only in case the Tribunal has ignored the evidence placed before it or the findings returned by Tribunal are totally perverse and
contrary to the evidence on record.
It is argued that power of judicial review cannot be exercised as a power of appellate Court to reÂappreciate the finding of fact based on
evidence before the Tribunal.
Respondent No. 2ÂCompany has also relied upon judgment, dated 27th October, 2015, rendered by a Division Bench of this Court in case titled as
M/s Krishna Paper Board Industries versus Sh. Rakam Singh and another, being LPA No. 12 of 2009, emphasizing upon the limits of judicial review
by the Writ Court.
Relying upon M/s. Firestone Tyre & Rubber Co. of India (P) Ltd. versus The Workmen Employed represented by Firestone Tyre Employees'
Union, reported in AIR 1981 Supreme Court 1626, it is contended on behalf of the petitioner that where the charge sheet was vague, it must be held
that there is no proper inquiry and when it appears that inquiry conducted by the employer was not fair in the sense that proper charge had not been
served on the employee or proper or full opportunity had not been given to the employee to meet the charges or inquiry had been affected by other
grave irregularities vitiating it, then position would be that Tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the
employee itself and the same result would follow, if no inquiry had been held at all.
Further, it is argued that in present case, for the aforesaid reasons, the Labour Court should not have approved the dismissal of petitioner on the
basis of irregular domestic inquiry. As discussed hereinabove, the evidence led by petitioner is not sufficient to rebut the evidence led by respondentÂ‐
Company and the findings returned by the Inquiry Officer on the basis of the said evidence.
of apex Court in Raj Kumar Dixit versus Vijay Kumar Gauri Shanker, Kanpur Nagar, reported in (2015) 9 Supreme Court Cases 345, has also
been relied upon by respondent No. 2ÂCompany to contend that no new pleadings are permissible in a petition under Article 226 of the Constitution of
India to contest the order passed by the Labour Court and the judicial review is permissible on the basis of material already placed before the Tribunal
and, in present case, petitioner has failed to adduce evidence in support of his claim not only before the Inquiry Officer but also before the Labour
Court despite having opportunity to do so.
It is also contended on behalf of respondent No. 2ÂCompany that the judgments passed by the Judicial Magistrates and summons placed on
record as Annexures PÂ13/1 to PÂ13/8 and PÂ14/1 to PÂ14/6, respectively, though, are not permissible to be placed as evidence in support of claim
of the petitioner at this stage, however, even if considered, they are of no help to the petitioner, rather these documents establish that petitioner was
available in the area of dispute but was avoiding his service deliberately in order to linger on the inquiry initiated against him.
Considering ratio of law laid down by the apex Court, as also reiterated in K.V.S. Ram versus Bangalore Metropolitan Transport Corporation,
reported in (2015) 12 Supreme Court Cases 39, it is settled law of land that in exercise of power of judicial review as well as superintendence, High
Court can interfere with order of Tribunal only when there is patent perversity in order of Tribunal or where there is a gross and manifest failure of
justice or principles of natural justice have been flouted.
I am not inclined to agree with the learned counsel for the petitioner that petitioner was not properly and effectively served during the inquiry. Plea
of petitioner, that Annexure PÂ6 does not contain any material proving that it was ever posted to petitioner, is not tenable for the reason that it is a
copy of envelope which would have only the address of recipient, i.e. petitioner and sender, i.e. respondent No. 2, which is very much available in this
document. Not only this, the said document contains the postal stamp and also letter No. 3809 with posting date being 21st August, 2000.
So far as the factum of publication in Dainik Tribune and circulation of the said newspaper is concerned, learned counsel for respondent No. 2Â‐
Company has rightly pointed out that Dainik Tribune is one of the newspapers recognized even by the High Court for publication of notices including
summons for substituted service. No material has been placed on record including in the statement of petitioner as RWÂ1 to establish that Dainik
Tribune was not having circulation in the area of Baddi, rather, in his cross examination, petitioner had stated that he did not know that Dainik
Tribune was in circulation in Baddi. He had not denied by saying that Dainik Tribune was not having circulation in Baddi, though, in his reply, he had
stated that notice was published in a paper not widely circulated in the area but that plea is not substantiated by leading any evidence.
It has also come on record that notices were also pasted on the gate of factory premises. Presence of petitioner in the factory premises including
the gate of factory is evident from the judgments placed on record by the petitioner himself as Annexures PÂ13/2 PÂ13/3, PÂ13/5, PÂ13/6 and PÂ‐
13/7, wherein incidents, dated 13th July, 2000; 9th November, 2000; 13th August, 2000; 27th August, 2000 and 14th September, 2000 had taken place
either inside the factory premises or outside the date of factory. In all these cases, petitioner is one of the accused.
Plea of petitioner, that when he was served in criminal cases, had respondent No. 2ÂCompany made serious/effective efforts, he could have been
served intimating the date fixed by Inquiry Officer, is also not tenable for the reason that in criminal cases, the accused is served by the police after
searching him all around in the area whereas for service of registered AD, the postman can only approach and knock the door of the house of the
addressee, who can conveniently be avoided in case the addressee is not interested to receive the letter.
In the facts of present case, the ratio of law laid down by the apex Court in its pronouncements in V.N. Bharat, Yallawwa and Dinanath
Shantaram Karekar's cases (supra), relied upon by the petitioner, is not applicable. In present case, no statutory presumption under Section 114 Ill. (f)
of Evidence Act has been drawn only after posting registered letter(s)/notice(s) to petitioner, but, thereafter, notice was pasted on gate of factory and
publication of notice was also made in daily newspaper. Pasting of notice on gate of factory and publication thereof in the newspaper was also
resorted only after issuing registered AD letters more than once. Presence of petitioner in the area has not been disputed. As also evident from copies
of judgments passed by Judicial Magistrates placed on record by the petitioner, the petitioner was very much present in the area, not only area, but, in
fact, the premises of factory and, therefore, the Inquiry Officer was right in believing that petitioner was avoiding his service through ordinary course,
i.e. registered letters, and the publication of notice in the newspaper Dainik Tribune, being a well recognized paper for publication of notices even by
High court, cannot be said to have been made in an unpopular newspaper.
Further, petitioner is not an ordinary workman, but is office bearer of Union having knowledge about the rights of workman and is also well versed
with the procedure to be adopted by the management after issuing the charge sheet and consequences on failure to defend him in a charge sheet
issued to him. In present case, charge sheet was duly served upon the petitioner and he had also filed reply to the same. He was suspended from
service from the date of service of charge sheet. According to him, no suspension allowance was being paid to him. His suspension was also not
revoked. In such circumstances, it is unbelievable and unnatural conduct that petitioner did not enquire about the fate of charge sheet but continued to
be a suspended workman and waited for summons from Labour Court in application for approval of his dismissal. Therefore, plea of the petitioner that
he remained uninformed about inquiry is not tenable.
Appreciating the entire facts on this issue, it can easily be inferred that petitioner was avoiding the service deliberately so as to get the findings of
Inquiry Officer set aside on this sole ground.
There is no dispute with regard to ratio of law laid down by the apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.'s case (supra),
wherein it has been held that where an application is made under Section 33 (2) (b) proviso, the authority before which the proceeding is pending for
approval of the action taken by the employer has to examine; whether the order of dismissal or discharge is bona fide; whether it was by way of
victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not etc.; and if the authority refused to
grant approval, obviously it follows that the employee continues to be in service as if the order of discharge or dismissal had never been passed and
though, the order of dismissal of discharge passed invoking Section 33 (2) (b) dismissing or discharging an employee brings an end of relationship of
the employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to
approval of the authority under the said provision. Further held that in other words, this relationship comes to an end de jure only when the authority
grants approval; if approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge
or dismissal had never been passed and consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits
available. But, in present case, after considering the evidence on record, authority has approved dismissal and the same is operative from the date of
order as the application for approval of dismissal and payment of one month's salary, as envisaged in proviso, was made simultaneously.
Facts in Indian Telephone Industries Ltd.'s case (supra); wherein after refusal to approve the first order of dismissal for want of compliance of
proviso to Section 33 (2) (b) of ID Act, second order of dismissal was passed on the assumption that nonÂcompliance of requirement of proviso was
only a technical breach and after complying with the requirement of proviso, second order of dismissal could be passed; are entirely different to that of
the instant case. In present case, requirement of proviso has already been complied with simultaneously at the time of passing the dismissal order.
Similarly, plea of petitioner that for want of adequate opportunity to defend his case by leading evidence in support of his contention is also not
tenable. It is settled position of law that the Labour Court can resort to calling for evidence of parties in an application filed for approval of dismissal in
pursuance to domestic inquiry and in such eventuality, parties are free to lead evidence in support of their claim. In present case also, even if it is
considered that petitioner was deprived of leading evidence during the inquiry, he was having opportunity to lead evidence in support of his contentions
before the Labour Court where, though, he appeared as a witness as RWÂ1, but, has not led any evidence corroborating his plea taken in the reply to
the application as well as response to the charge sheet.
His claim is that he had not indulged in the activities, as alleged in the charge sheet, but had only assisted Sheetla Parsad to file his complaint with
the management after getting signatures thereon of other workmen present on the spot when Sheetla Parsad was beaten by foreman. But, the
petitioner has failed to produce not only Sheetla Parsad but any other workman who had witnessed the incident, as alleged by the petitioner.
I may not be in agreement with the Labour Court that the petitioner could have produced the application of Sheetla Parsad as the said application,
if any, might be lying with respondent No. 2ÂCompany and not with the petitioner. However, the persons, including Sheetla Parsad, who had been
helped by the petitioner, could have been easily examined as witness in support of the petitioner.
In reply to charge sheet, petitioner had also taken a ground that the charge sheet might have been the result of submitting a demand notice to
management by the Union. In his statement in the Labour Court, the petitioner is completely silent in this regard. It is not a case where the workman
was defending him in person before the Labour Court, but, he was duly represented by the counsel and despite having been represented by an expert,
no material whatsoever has been placed on record before the Labour Court to substantiate the plea of petitioner.
So far as the prayer of respondent No. 2Âcompany for dismissal of petitioner on the ground of delay and laches is concerned, I am not inclined to
accept the same as it cannot be ignored that petitioner is a workman and also in para 16 of the petition, the petitioner has duly explained the period
spent during the intervening period after passing of impugned order and filing of petition.
Learned counsel for the petitioner has contended that petitioner was an office bearer of registered trade union and, thus, being a 'protected
workman', during the pendency of references/proceedings in respect of an industrial dispute before the Labour Court, respondent No. 2ÂCompany
could not have taken the impugned decision punishing him by dismissal or otherwise in view of subÂsection (3) of Section 33 of the ID Act.
Plea of petitioner is not sustainable. 'Protected workman' has been defined in Rule 61 of The Industrial Disputes (Central) Rules, 1957, wherein it
is provided that every registered trade union connected with an industrial establishment, to which the Act applies, shall communicate to the employer
before 30th April every year, the names and addresses of such of the officers of union, who are employed in that establishment and who, in the
opinion of the union should be recognized as 'protected workmen' and any change in the incumbency of any such officer shall be communicated to the
employer by the union within fifteen days of such change. In response thereto, employer shall, subject to limit of number of workmen to be recognized
as 'protected workmen', shall recognize such workmen to be 'protected workmen' for the purpose of subÂsection (3) of Section 33 of ID Act and
communicate the same to the union in writing within fifteen days of receipt of information from the trade union and the life of such 'list of protected
workmen' is twelve months from the date of such communication. In present case, there is nothing on record to indicate that trade union had ever
communicated the name of petitioner for enlisting him as a 'protected workman' and/or in response thereto, respondent No. 2ÂCompany had
conveyed such recognition
For aforesaid discussion and settled law of land, no case to interfere with conclusion returned by the Labour Court and the Inquiry Officer with
regard to domestic inquiry is made out.
There is another aspect to be looked into necessarily. It is not only the workman who suffers but there are his family members who are also
sufferers of any action taken against the workman. Even if the management had lost faith in the petitioner and was considering his presence as a
threat to his officers or to the work culture, then also it was not appropriate to deprive him from other benefits of his long service and it would have
been appropriate to remove him alongwith terminal benefits.
The Court has an obligation to consider as to whether punishment imposed upon a workman is proportionate to his misconduct and at the time of
considering the same, other relevant factors are also necessary to be considered.
Petitioner was employee of the lowest rank in respondent No. 2ÂCompany and though, alleged in the charge sheet, but, there is nothing on record
to establish that except present one, the petitioner was ever served with any notice for misconduct or he had involved in committing any misconduct.
Therefore, upholding the removal of petitioner from service, it is directed that all dues, including gratuity, leave encashment, unpaid bonus, EPF and
pension etc., as admissible under law with reference to length of service of petitionerÂworkman shall be released by respondent employer to him, in
case such dues have not already been paid/released.
Petition is disposed of in aforesaid terms. Pending applications, if any, are also disposed of accordingly.