Ramphal vs State of Haryana and Others

N. K. Sodhi, J.

Ramphal-petitioner (for short, the workman) was employed as a welder-cum-fitter with respondent 2 since January 1, 1983 and his monthly salary is stated to be Rs. 1875/-. The management alleged that the vorkman was highly irregular in attending to his duties and the record of his attendance for the past three years with effect from December 16, 1992 was rather ] poor. He is said to have worked for 171 days in the year 1991, for 73-1/2 days during the year 1991-1992 and for only 64 days till December 16, 1992 and that in spite of several warnings he did not improve. The management is stated to have served him with a charge sheet and after holding a domestic enquiry in which he was found guilty of being a habitual absentee his services were terminated on January 14, 1993. This termination gave rise to an industrial dis-pute and the workman served the management with a demand notice u/s 2A of the Industrial Dispute Act, 1947 (hereinafter called ''the Act''). The dispute between the parties was taken up for conciliation by the Conciliation Officer. These proceedings proved abortive and the Conciliation Officer must have sent his failure report to the State Government. The State Government then in the exercise of its powers u/s 10(1) of the Act declined to refer; the dispute for adjudication. The communication dated September 16, 1993 addressed by the State Government to the petitioner in this regard as translated in English would read as under:-

"On the subject cited above, you are informed that the Government does not consider your case fit for adjudication by the Labour Court as it has come to its notice that you were in the habit of remaining absent because of which your services have been terminated after enquiry".

It is this communication that has been impugned in the present petition filed by the work- man under Article 226 of the Constitution.

Learned counsel for the petitioner while challenging the impugned order submitted that the State Government cannot itself adjudicate upon the merits of the charge that was levelled by the management against the workman and there-upon decline to refer the dispute to the Labour Court. It was further contended that even if the charge against the workman stood proved and the domestic enquiry conducted by the management is taken to be fair and proper, it was open to the workman to have the matter re- examined by the Labour Court and get the punishment reduced u/s 11A of the Act. This, according to the learned counsel, could happen only if the State Government had made a reference.

Learned Counsel for the management, on the other hand, contended that it was always open to the State Government to prima facie look into the dispute sought to be raised by the workman and the Government in its discretion could reject the same as the Government is not expected to refer all disputes that are raised by the workmen.

We have heard counsel for the parties at length and find merit in the contentions raised on behalf of the petitioner. The present is a case where the management charge sheeted the workman and after holding a domestic enquiry found him guilty of the charges and as a consequence of those findings, the workman was dismissed from service. The law as it stood prior to the introduction of Section 11A of the Act was that where the employer had dismissed the workman on charges of misconduct proved in a domestic enquiry, the Labour Court or the Industrial Tribunal on a reference made to it could only examine the validity and fairness of the enquiry held by the employer and whether the findings of misconduct arrived at in the domestic enquiry found support from the evidence led by the parties in that enquiry. The adjudicating authority could not, however, re-appraise the evidence led at the domestic enquiry and come to a conclusion different from the one arrived at in such an enquiry. Again, the adjudicating authority could not interfere with the quantum of punishment imposed by the employer as that was regarded a managerial function. In other words, the Labour Court or the Tribunal has no jurisdiction to sit in judgment over the findings recorded in the domestic enquiry as an appellate body nor could it interfere with the quantum of punishment imposed by the employer. To put it differently, the Labour Court or the Industrial Tribunal could interfere only when the enquiry was unfair or the findings arrived at in the domestic enquiry were perverse or had no basis in the evidence or if the management was guilty of victimisation or the punishment was so harsh and oppressive so as to lead to the conclusion that the management was guilty of unfair labour practice. These were the limited grounds on which the Tribunals could interfere and on no other. In such cases when the workman would raise an industrial dispute, the Government could in the exercise of its discretion u/s 10(1) of the Act prima facie look into the dispute to see whether it was patently frivolous or not. If it was, the reference could be declined and if it was not, the Government would refer the dispute for adjudication to any of the authorities mentioned in Section 10(1) of the Act.

However, with the introduction of Section 11A by Act 45 of 1971 w.e.f. December 15, 1971 the law has been substantially altered. Section 11A of the Act reads as under:-

"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."

A reading of this section makes it clear that while exercising powers under this section the Tribunal now has the power to re- appraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by the employer established the misconduct alleged against the workman. In other words, the Labour Court or the Industrial Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct but it can also differ with the said finding in a given case and hold that no misconduct is proved which could not be done prior to the coming into force of Section 11A.

Section 11A has brought about yet another change in law and that is, regarding interference with the quantum of punishment. If the Tribunal comes to the conclusion that the misconduct is established, it earlier had no power to interfere with the punishment imposed by the management but now even where misconduct is proved, it is open to the Tribunal to say that it does not merit punishment by way of discharge or dismissal and it may award any lesser punishment instead.

The question that now arises is whether after the coming into force of Section 11A when the workman has been given a right to have a finding of misconduct scrutinised by a Labour Court or an Industrial Tribunal and also to have the punishment reduced even if misconduct is held to be proved on a judicial assessment, can the State Government in the exercise of its powers u/s 10 decline to refer the dispute and thereby deprive the workman of these rights. In our opinion, the answer has to be in the negative. In a case where a domestic enquiry has been held and the alleged misconduct proved, the State Government has, in our opinion, no option but to refer the dispute for adjudication so that the workman can have the findings of misconduct and the quantum of punishment examined by the adjudicating authority which will satisfy itself whether misconduct is really proved or not and even if it is proved what is the appropriate punishment in the circumstances of a particular case since the punishment must not be arbitrary and should be commensurate with the charge proved. If the reference is declined the industrial dispute cannot be adjudicated upon and the workman would be denied the rights as given to him by Section 11A. We are, therefore, of the considered view that in cases where misconduct is alleged and the workman is discharged or dismissed from service, the State Government has no option but to refer the industrial dispute raised by the workman u/s 10(1) of the Act so as to enable him not only to challenge the validity of the enquiry but also to prove before a judicial Tribunal that he is not guilty of any misconduct and even if the charge is proved the punishment imposed on him by the management is disproportionate to the gravity of the charge.

Learned counsel for respondent 2 has drawn our attention to a Division Bench judgment of the Karnataka High Court in C. Minchowdappa v. State of Karnataka and two others 66 F.J.R. 84 where the learned Judges have undoubtedly taken the view that inspite of the change in law and the powers given to an adjudicating authority by Section 11A, the State Government can still refuse to make a reference even in cases where a workman has been punished by way of discharge or dismissal for a proved misconduct. With all respect to the learned Judges we are not inclined to agree with this view. If the State Government is held to have a discretion in the matter and it chooses not to refer the dispute, the rights of the workman as given to him by Section 11A will become illusory. To say that Section 11A gives only a power to the adjudicating authority to be exercised when a reference is made to it will, in our opinion, be contrary to the object for which Section 11A was enacted. The power has been given by the legislature for the benefit of the dismissed or discharged workman and we have not been able to persuade ourselves to agree that such a workman can be denied a right to invoke the exercise of such a power by the adjudicating authority.

No doubt, Section 10 confers on the State Government a wide discretionary power to refer or not to refer an existing or an apprehended industrial dispute but in certain cases this discretion has been curtailed. For instance in the case of a public utility service where a notice has been given u/s 22, the State Government, unless it finds notice to be frivolous or vexatious, it is left with no choice but to refer the dispute to an appropriate adjudicating authority. Similarly, by enacting Section 11A, the Legislature has in cases where a workman has been dismissed or discharged from service for misconduct and an industrial dispute raised on that account, impliedly taken away the discretion of the State Government so as to enjoin upon it to make a reference as otherwise the provisions of Section 11A will be rendered nugatory and the workman deprived of the right conferred on him by it.

The impugned order cannot be sustained from another point of view as well. The State Government has while declining to make the reference virtually adjudicated upon the dispute and decided the merit of the case by holding that the workman was a habitual absentee and that he iiad been rightly dismissed from service after a domestic enquiry. By doing so, the State Government has usurped the functions of the adjudicating authority which it could not do while exercising its powers u/s 10 of the Act.

In the result, the writ petition is allowed, the impugned order refusing to refer the dispute quashed and the State Government is directed to make a reference u/s 10(1) of the Act within one month from the date of receipt of a copy of this order.

Sd/-

J.B. Garg, J.