The Ludhiana District Cooperative Milk Producers Union Limited vs Kamiker Singh and Another

Rakesh Kumar Jain, J.—Respondent No. 1 was appointed as Procurement Assistant by the General Manager, Punjab State Federation of Cooperative Milk Producers Union Limited. He was charge-sheeted on 5.5.1989 and placed under suspension on 28.5.1990 with immediate effect. Thereafter on 13.10.1990, he was issued a subsequent chargesheet. There were total 13 serious charges against him. The enquiry was held against the appellant in which he was held guilty of the charges. On the basis of enquiry report, he was dismissed from service on 18.11.1991. However, since the earlier reference No. 20 of 1990 was already pending before the Labour Court/Industrial Tribunal, the appellant while abiding all the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1948 (for short ''the Act''), moved an application for seeking approval of the Tribunal for dismissal and also paid one month salary by money order to respondent No. 1. After pleadings were over, following issues were framed by the Tribunal on 15.5.1992:-- (i) Whether the application is not maintainable as alleged in the preliminary objections of the written statement?

(ii) Whether a fair and proper enquiry has been held against the respondent?

(iii) Whether the applicant is entitled to approval sought by them?

(iv) Relief.

The first issue was decided in favour of the appellant as nothing was brought on record as to how the application was not maintainable. Issues No. 2, 3 & 4 were taken up together by the learned Tribunal and it only opined that the punishment of dismissal is disproportionate to the charges leveled and proved against respondent No. 1 and did not grant approval for dismissal. However, the Tribunal awarded punishment of stoppage of three increments with cumulative effect.

Aggrieved against the order of the Tribunal, the appellant had filed a writ petition in which it was contended that once the finding of the enquiry officer was accepted, there was no occasion for the Tribunal to substitute quantum of punishment and award its own punishment. The learned Single Judge though had observed that Labour Court has exceeded its jurisdiction in substituting its opinion but writ petition was dismissed on the ground that it would be an exercise in extravagant waste of time if the matter is remanded back to the Tribunal after setting aside its order for deciding it again.

Learned counsel for the appellant has assailed the correctness of the order of the Tribunal as well as learned Single Judge in this appeal while submitting that once the Tribunal had not differed with the report of the enquiry officer in totality, it ought not have refused to accept the order of dismissal passed by the appellant and substitute its own punishment of stoppage of three increments with cumulative effect. As regards the order of learned Single Judge, it is submitted that once it has been found that the Tribunal has exceeded its jurisdiction in changing the order of punishment, the order of the Tribunal should have been set aside and the matter should have been remanded back to it for deciding it afresh.

On the other hand, learned counsel for respondent No. 1 has submitted that the Tribunal has not committed any error as the order of dismissal has been placed before it for the purpose of approval which it found to be disproportionate to the misconduct of respondent No. 1 and has rightly substituted his opinion for the purpose of imposing the punishment which commensurate with the misconduct/delinquent behaviour of respondent No. 1.

We have heard both the counsel for the parties in detail and have seen the record.

There is no doubt that the order of dismissal was passed by the appellant on the basis of a proper enquiry which has been upheld by the Tribunal as well as the learned Single Judge. There is a total compliance of Section 33(2)(b) of the Act as one month pay was paid to respondent No. 1 and approval was sought from the Tribunal of the action which has been sought to be taken by the appellant. The only question is as to whether the learned Tribunal has erred in not accepting the order of dismissal and substituted the order of punishment on its own and the learned Single Judge while holding that the Tribunal has exceeded its jurisdiction in the matter of substituting its opinion with regard to punishment has still upheld the order of the Tribunal only on the ground that while remanding the case back to the Tribunal for deciding afresh it would be a wastage of time.

Section 33(2)(b) of the Act, in which application had been filed by the appellant, read as under:--

33(2) During the pendency of any such proceeding in respect to an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute (or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman)

(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise that workman;

Provided 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 the action taken by the employer.

According to the aforesaid provisions, the approval has been sought by the appellant from the Tribunal where the proceedings were pending with regard to the order of dismissal. On the pleadings of the parties, issue "as whether a fair and proper enquiry was held and the appellant is entitled to approval" was framed. Insofar as the issue of fair and proper enquiry is concerned that has been decided by the Tribunal in favour of the appellant but the punishment of dismissal has been changed. This order has been found to be without jurisdiction by the learned Single Judge in so many words which are reproduced as under:--

Undoubtedly the Labour Court had exceeded itself to substitute its opinion in place of the punishing authority which the law did not mandate.

But at the same time it did not interfere with the order of the learned Tribunal by observing that "but if the Court accepts the petition on this ground the logical corollary would be to remit the matter back to the Labour Court to decide afresh. This course to my mind would be an exercise in an extravagant waste of time".

Once it has been found by the learned Single Judge that the order of the Tribunal is against the mandate of law and beyond its jurisdiction, the order of Tribunal had to be set aside as an order without jurisdiction is a nullity and non-est in the eyes of law even if its re-decision would entail and consume precious time of the Court because after setting aside the order of Tribunal, the matter has to be remanded back for deciding it afresh in accordance with law. In view of the aforesaid discussion, the present appeal is hereby allowed and the impugned orders are set aside. The matter is remanded back to the Tribunal to decide the matter afresh in accordance with law within a period of six months from the date of receipt of certified copy of this order.