Shri Mahipal Sharma vs Escorts Limited (Tractor Division)

K.K. Srivastava, J.—This judgment will dispose of LPA No. 825 and 826 of 1986, filed by Shri Mahipal Sharma against judgment dated 20.8.1986 passed by Hon''ble D.V. Sehgal, J. of this Court as they arise out of the same judgment and involve common questions of fact and law.

The brief facts giving rise to these appeals may, briefly, be noted as under:

Appellant Mahipal Sharma, workman was employed as Senior Assistant in the Stores Department in the Tractor Division of M/s Escorts Ltd., Faridabad on 25.7.1978. Initially, he was appointed on probation and subsequently, he was confirmed in his post with effect from 1.2.1979. The petitioner by the nature of his duties had direct access to the store where various items were kept. On 5.5.1983 the dickey of the scooter of appellant-workman was checked by the security personnel at the time when the appellant was leaving the premises of the factory. The said search yielded recovery of four pieces of ''overload relay'', items kept in the said store. These items were found wrapped in a brown envelop and as per allegations made against him they had been unauthorisedly removed from the store with the aim of taking them out of the premises of the factory. The said recovery was witnessed by one Shri R.K. Kuckroja who is an office-bearer of the workers'' union and he in his statement confirmed the recovery of the aforesaid store items. Since the theft of the store items amounted to serious misconduct on the part of the workman, a charge sheet was served on him and an enquiry was conduct against him. He was placed under suspension. During the course of the enquiry, he denied the allegations made against him regarding the committing of theft of the aforesaid store items. The enquiry was conducted according to the principles of natural justice and a reasonable and adequate opportunity had been afforded to him to defend himself. He was afforded opportunity to cross-examine the witness examined in support of the charges levelled against him. He himself was afforded reasonable opportunity to produce his own evidence. After the enquiry was completed, the Enquiry Officer submitted his report and found the appellant-workman guilty of the charges levelled against him. The said report was accepted by the Employer who dismissed him from service vide memo dated 12.4.1984. The workman served a demand notice and prayed for his reinstatement. The Employer turned down the demand of the Workman-appellant which led to the re-conciliation before the Labour-curn-Reconciliation Officer for settlement which could not be brought about and the same failed. The workman raised an industrial dispute and the same was referred to the Presiding Officer, Labour Court, Faridabad, who after recording evidence, and hearing the parties, gave his award on 4.2.1985, a copy of which has been placed on record as annexure P.1. The Labour Court recorded the finding that the domestic enquiry conducted into the charges levelled against the workman was quite fair and proper. Regarding the punishment, the Labour Court held that the order of dismissal was justified and in order. However, the Labour Court intervened u/s 11A of the Industrial Disputes Act, 1947 (for short the Act 1947) and gave the benefit to the workman and ordered his re-instatement with continuity of service but without any back wages. The order of the Presiding Officer of" the Labour Court, Faridabad was challenged by the Employer i.e. the M/s Escorts Limited in C.W.P. No. 2145 of 1985 filed in this Court. The workman also filed C.W.P. No. 3767 of 1985 praying for the quashing of the award of the Labour Court to the extent the said award held the domestic enquiry being proper and fair and denied the petitioner his back wages. Both the writ petitions came up for hearing before the learned Single Judg6 on 20.8.1986. C.W.P. No. 2145 of 1985 filed on behalf of the Employer was allowed and the award of the Labour Court annexure-Pl was quashed to the extent it directed re-instatement of the workman. Learned Single Judge dismissed the C.W.P. No. 3767 of 1985 filed by the workman-appellant.

The workman felt aggrieved against the judgment of the learned Single Judge and he has filed two LPAs. LPA No. 825 of 1986 is directed against the allowing of C.W.P. No. 2145 of 1985 filed by the Employer, while LPA No. 826 of 1986 is directed against the dismissal of C.W.P.No. 3767 of 1985 filed by the appellant.

Learned counsel for the appellant-workman has challenged the correctness of the finding of the learned Single Judge, in so far as it relates to the non-applicability of Section 11A of the Act 1947. He has also submitted that the finding of the Labour Court as also the learned Single Judge regarding the domestic enquiry being fair and proper was not correct and has contended that the enquiry was not conducted properly in-as-much as no reasonable opportunity was afforded to the appellant to engage a lawyer to prosecute his case., Shri A.P. Bhandari, learned counsel for the appellant further submitted that the workman was a poor employee who was pitted against the mighty Employer i.e. M/s Escorts Limited, Faridabad. According to the submissions of Shri Bhandari, the learned Single Judge committed an error in law in not giving the benefit of Section 11 of the Act 1947 and cited a number of authorities in support of his arguments. Before adverting to the rulings relied upon by the learned counsel for the appellant, we deem it appropriate to refer to the findings of the Labour Court regarding the domestic enquiry held into the charges levelled against the workman-appellant. It will appear from the perusal for the award of the Labour Court that the following issues were framed for disposal of the reference:

Whether the domestic enquiry is fair arid proper ? 2. As per reference. 6. Shri Rakesh Parthu, the Enquiry Officer was examined by the Employer as MW1. The claimant was duly represented by his representative, namely, Shri Sewa Ram, who was an office-bearer of the Union. Shri Sewa Ram was the Legal Secretary of the Union. The Labour Court held that Shri Sewa Ram was a qualified person and he represented the Case of the workman Shri Mahipal Sharma. On behalf of the Management, one Shri Y.O. Talwar conducted the case before the Enquiry Officer. It will appear from the findings recorded by the Labour Court that Shri Talwar was a Matric and holding a diploma in Mechanical Engineering. He has further noted that the claimant himself was a graduate and competent to defend himself. The enquiry report Exhibit M-4 was placed on record and was perused by the Labour Court. It was canvassed before the Labour Court on behalf of the workman that the Management pressurised Shri Sewa Ram who represented the case of the workman by serving a charge-sheet on him (Sewa Ram) so that he may not represent the case of the claimant properly. Shri Bhandari has tried to highlight this aspect to say that the enquiry was not fairly and properly conducted. The Labour Court examined this aspect and repelled the contention of the workman. The relevant finding of the Labour Court on this aspect is as under:-

" It is further contended that Shri Sewa Ram was also issued the charge-sheet to pressurise, him not to represent the claimant properly. If Shri Sewa Ram misbehaved, he was also issued the charge sheet which does not vitiate the enquiry. I have also gone through the charge sheet issued to Shri Sewa Ram. ft has not pressurised the representative in any way."

He has also not accepted the contention of the workman that by not permitting him to engage a counsel to defend himself, he has been prejudiced. The Labour Court has referred to the standing orders of the Company placed on record as Exhibit PM, which provided that the claimant could not bring an Advocate. Apart from this, he mentioned that the workman was represented by a legally trained person. Having considered these facts the learned Presiding Officer of the Labour Court recorded a categorical finding that no prejudice has been caused to the workman and the enquiry conducted into the charges levelled against him was fair and proper. This finding of the Labour Court was assailed before the learned Single Judge. Learned Single Judge held that the domestic enquiry into the allegations of mis-conduct against the workman was conducted in accordance with the principles of natural justice and full, opportunity had been afforded to him to cross-examine the witnesses produced in support of the charges and to produce his evidence in defence. After carefully going through the finding recorded by the Labour Court as also the learned Single Judge, we find nothing wrong with the same. The appellant has not been able to show that he has been in any way prejudiced in the domestic enquiry as noted, above. He was represented by a representative who was legally trained and the workman himself was a graduate whereas the person who represented the Management was only Matriculate. The relevant standing orders of the Management were placed on record and they did not allow the engagement of a counsel by the workman. It may be pointed out that merely because Shri Sewa Ram, who was representing the case of the workman-appellant Shri Mahipal Sharma was charge-sheeted, will not by itself be sufficient to hold that the Management was pressurising Shri Sewa Ram not to represent the case of the workman and thereby the workman was prejudiced. Consequently, we hold that the domestic enquiry conducted into the allegations against the workman was fair and proper. We do not find any merit in the submissions to the contrary advanced by the learned counsel for the appellant.

So far as the argument of Shri Bhandari regarding the applicability of Section 11A of the Act 1947 is concerned, it may be mentioned that the provisions of Section 11A of the Act 1947 will be applicable only where the Labour Court found that the punishment imposed on the workman was not commensurate with the offence proved against him in the enquiry. In the instant case, the Presiding Officer of the Labour Court held in the award as under:

"The claimant was dismissed as four pieces of Overload Relay were found from the dicky of his scooter. There is a serious misconduct. The management has lost confidence in him. Hence the workman who was found to have committed theft, is liable to suffer extreme1 penalty. Hence the order of dismissal is justified and in order.''

The Learned Presiding Officer of the Labour Court after recording the finding that the order of dismissal was justified and in order, could not invoke the provisions of Section 11A of the Act 1947 and order for re-instatement of the workman with continuity of service. The reasons for extending the benefit of Section 11A of the Act have been stated by the Presiding Officer of the Labour Court in. the award as under:

"But taking into consideration the fact that no person had seen him putting these articles in the dicky of the scooter. The scooter stand is also quarted by the watchman of the company. The workman is searched while entering at the scooter stand. In these circumstances, it cannot be said that the claimant had put these overload relays in the dicky of his scooter. It is also stated that the lock of the scooter was also defective. His past record was also not bad. In these circumstances, I give the benefit of Section 11A to the claimant and order his reinstatement with continuity of service but without any back wages.''

Realising the difficulty arising out of the finding of the Labour Court to the effect that the order of dismissal was justified and in order, Mr. Bhandari urged that in all probabilities due to typographical error the word ''not'' has been omitted before the work ''justified'' and after the word ''is'' in the award. According to our considered view there is no reasonable basis for making such submission. The relevant portion of the award, as quoted above, leaves no room for doubt that the Labour Court meant to record the finding ''hence the order of dismissal is justified and in order''. It is relevant to note that the Labour Court mentioned in the award that "there is a serious mis-conduct. The Management has lost confidence in him. Hence the workman who was found to have committed theft, is liable to suffer extreme penalty." After recording these reasons, the Labour Court proceeded to hold that the order of dismissal was justified and in order. We do not find any merit and substance in the arguments of the learned counsel for the appellant.

The learned counsel for the appellant placed reliance on a Division bench judgment of this Court rendered in the case of Punjab Tourism Development Corporation Vs. Presiding Officer, Labour Court and Others, . It was held in para 9 of the judgment at page 809 that:

"However, with the insertion of Section 11A, the legal position has undergone substantial change in regard to the jurisdiction of the Labour Courts and Industrial Tribunals.''

The submission made before the Division Bench in the case of Punjab Tourism Development Corporation (supra) was that the Labour Court did not have jurisdiction to interfere with the punishment, awarded by the employer. While repelling the said submission, the Court observed", rather, it is held that the Labour Court is not only possessed with the power to interfere with the punishment awarded by the employer in an appropriate case, but it is under a duty to examine the issue of punishment awarded by the employer and decide for itself whether the punishment is justified or not. In cases where the Tribunal or the Labour Court comes to a conclusion that the punishment is unduly harsh or highly disproportionate to the misconduct found proved, the Labour Court/Tribunal can interfere with the award of punishment."

The next case relied on by Mr. Bhandari is Post Graduate Institute of Medical Education and Medical Sciences through its Director at Chandigarh v. The Presiding Officer, Labour Court, Union Territory, Chandigarh and Ors. 1997(1) R.S.J. 806. The Division Bench of this Court after referring to the relevant case law cited before it held in para 10 at page 810 as under:

"Our attention has also been invited by Management of Craigmore Estate, Kullakamby Post, Nilgiris Dist. Vs. Labour Court, Coimbatore and Another, ; Sri Ganeshar Aluminium Factory C/o. Jeewanlal (1929) Limited Vs. Industrial Tribunal, Madras and Another, and Management of Binny Limited Vs. Additional Labour Court and Another, , and the consensus of all these authorities is that u/s 11A of the Industrial Disputes Act and Labour Court while holding misconduct having been proved against the workman, when came to the conclusion that the punishment was disproportionate to the proved charges, had powers to reduce the punishment, as has rightly been done in the present case by the Labour Court when it stopped four annual grade increments of the workman without cumulative effect. These authorities are helpful to us in adjudicating the controversy in the present two letters patent appeals."

The position of law as laid down in the aforesaid cases cited by Mr. Bhandari regrading the jurisdiction of the Labour Court to interfere u/s 11A of the Act 1947 is quite settled. However, it is to be noted that before the Labour Court can interfere u/s 11A of the Act 1947 he has to come to the finding that the punishment awarded to the workman is unjustified, unfair and not commensurate to the mis-conduct found proved against him. According to us, the facts of the instant case are clearly distinguishable.The Labour Court has recorded a categorical arid specific finding about the punishment being just and proper. Once the Labour Court has found the punishment to be just and proper, he could not invoke the jurisdiction u/s 11A of the Act 1947 and interfere with the punishment awarded by the Employer. The learned Single Judge was right in setting'' aside the award to the extent it ordered for the reiastatement of workman-appellant with continuity of service. We do not find any substance in the two appeals which are dismissed accordingly.