M/S Kanpur Plasti Pack Ltd. Thru' ... vs Teekam Singh & Others
2017 Latest Caselaw 644 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
A.F.R.
 
Reserved on:-11.4.2017
 
Delivered on:-15.5.2017
 
Court No. - 26
 
Case :- WRIT - C No. - 20823 of 2005
 

 
Petitioner :- M/S Kanpur Plasti Pack Ltd. Thru' M.D.
 
Respondent :- Teekam Singh & Others
 
Counsel for Petitioner :- Ashok Trivedi
 
Counsel for Respondent :- C.S.C.,Rakesh Pande
 

 
Connected With
 

 
Case :- WRIT - C No. - 37942 of 2005
 
Petitioner :- Teekam Singh
 
Respondent :- M/S Kanpur Plasti Pack Limited Thru' M.D. & Another
 
Counsel for Petitioner :- Rakesh Pande,Pankaj Sharma
 
Counsel for Respondent :- C.S.C.,Ashok Trivedi
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. These two writ petitions have been filed challenging the award passed by the Presiding Officer, Labour Court, U.P. Kanpur dated 22.4.2004 in Adjudication Case No.257 of 1984. The employer M/S Kanpur Plastic Pack Ltd. Kanpur has challenged the award insofar as, it has setaside the dismissal of the respondent Teekam Singh as wrongful and illegal and directed for his reinstatement. Teekam Singh, the workman has challenged the award insofar as the Presiding Officer has not given full backwages to the workman and limited it to twenty five percent only even after holding that his dismissal was wrong and he was thus entitled for reinstatement.

2. The facts as are evident, from a perusal of the award in question are to the effect that Teekam Singh was employed in M/S Kanpur Plastic Pack Ltd. with effect from 8.11.1976 as a permanent employee. He was working as a chemist in the laboratory of M/S Kanpur Plastic Pack Ltd. It is the case of Teekam Singh that he was performing purely clerical, manual, technical work, which did not involve any supervision of any staff under him. He was given the designation of supervisor by the employer with malafide intent.

3. A charge-sheet was given to Teekam Singh on 20th August 1983 asking for an explanation from him which explanation he gave. Thereafter, no inquiry was conducted and without giving any opportunity of hearing and without the charges being proved at any stage, the employers issued the dismissal order dated 3.9.1983 holding him guilty of all the charges.

4. The company raised a preliminary issue with regard to maintainability of the Adjudication Case on the ground that Teekam Singh was not a workman has he was earning more than Rs.500/- per month, infact his salary alongwith his allowances amounted to Rs.1040/- per month and therefore he could not be said to be workman as defined in the Industrial Disputes Act. The reference was liable to be returned as not maintainable.

5. The workman Teekam Singh, on the other hand produced evidence to the effect that there was no employee working under his supervision and Teekam Singh used to carry out several duties not only as chemist, but as a clerk also and was wrongly being designated as supervisor to only to hoodwink the authorities into believing that the respondent was not a workman and thus not entitled to protection granted to ordinary workman under the Labour Laws.

6. The Labour Court discussed in detail the work carried out by Teekam Singh as a chemist in the laboratory of the employers and has come to the conclusion that although the total emoluments of Teekam Singh came to around Rs.1040/- per month this did not mean that Teekam Singh was performing work of supervisory nature. The true nature of his work was found to be that of a workman/ordinary chemist in a laboratory.

7. After considering the documentary evidence produced by both the sides as well as statements of Teekam Singh and Shri S.P. Rajwanshi then Manager of the employer and one H.N. Pandit, who was supposed to be working under Teekam Singh, the Labour Court decided the preliminary issue against the employers on 14.4.1989.

8. The employers thereafter filed a writ petition No.10094 of 1989, wherein this Court affirmed the orders passed by the Labour Court on 14.4.1989 by observing thus:-

"-----After considering aforesaid contentions I find that the petitioner employer has referred to various documents for showing that the petitioners designation was a supervisor and he drew salary more than Rs.500/-, but nothing has been shown on behalf of the petitioner employer that the respondent No.3 was actually employed as supervisor referring to the real nature of duty and function performed by the respondent No.2. In view of this aforesaid circumstances. I am of the opinion that only if it is shown on behalf of the employer that the employee concerned was not only having designation of supervisor, but his real nature of duty and function also showed that he was actually a supervisor, no grievance can be made against the impugned order."

In view of the aforesaid I do not find any reason for interference with the impugned order.

This writ petition is therefore disposed of.-----"

9. With regard to the conduct of disciplinary proceedings against the employee Teekam Singh, the counsel for the employers has tried to contend, that since there was an admission on the part of the delinquent employee regarding carelessness leading to return of a consignment causing financial loss to the employer, there was no need to have conducted regular disciplinary proceedings.

10. The employers M/S Kanpur Plastic Pack Ltd. stated before the Labour Court that Teekam Singh was working as supervisor in Gunny Bag Section and his job was to supervise quality control in the laboratory and because of his not performing his work of quality control, the company suffered when six consignments of Gunny Bags were returned by M/S Indian Farmers Fertilisers Co-operative Ltd. resutling in a loss of Rs.4.6 lakhs to the company in July 1983. One of its other customers had imposed a penalty on the company for bad printing on its Gunny Bags which also resulted in loss of reputation for the company. Due to the carelessness shown by the Teekam Singh, it was alleged by the company that it lost several of its customers.

11. The oral evidence of the Managing Director Shri. Mahesh Swaroop Agrawal was considered by the Labour Court, wherein he has stated clearly that due to financial loss caused on return of consignment by customers and imposition of penalty by another customer, the services of Teekam Singh were dispensed with. The Managing Director himself in his deposition as well as the Manager had admitted before the Labour Court that no regular domestic inquiry was held.

12. While setting aside the dismissal order, the Labour Court in its award has mentioned the judgments cited by both the counsels for the parties. In the case of Uptron India Ltd. Vs Shammi Bhan 1998 (79) SLR Page 233, the Hon'ble Supreme Court had observed that there cannot be any arbitrary dismissal without following due process of law. Disciplinary proceedings should be conducted and guilt established and charges found to be proved before any action terminating the services of an employee can be taken up.

13. The Labour Court in its award has stated that although Teekam Singh had submitted a reply to the charge-sheet given to him by his employers and denied all the charges yet no disciplinary proceedings were held and this fact was admitted both by S.P. Rajwanshi, the factory Manager as well as the Managing Director of the company itself Shri Mahesh Swaroop Agrawal.

14. It has been argued by the learned counsel for the employer before this Court again that since Teekam Singh has engaged as supervisor in Gunny Bag Section and was earning more than Rs.1040/- per month he could not be said to be a workman. This issue is no longer res-integra in view of the judgment passed by this Court in Writ Petition No. 10094 of 1989, wherein this Court on 17.8.1998 had affirmed the order passed by the Labour Court deciding the preliminary issue regarding maintainability of the reference against the employer.

15. With regard to the domestic inquiry, the counsel for the employers relied upon Workman of M/S Firestone Tyre and Rubber Company of India Private Ltd. Vs. The Management and others 1973 Lab IC Page 851, to argue that in case a defective inquiry has been done then the Labour Court could itself examine the documents on record to find out the correctness of such an order of dismissal.

16. Section 11(A) empowers the Labour Court or Tribunal to reappraise the evidence and examine the correctness of the finding arrived at in a domestic inquiry. The mere fact that no inquiry or defective inquiry has been held by the employers does not by itself render the dismissal of the workman illegall. The right of the employer to adduce evidence justifying its action in such case is not taken away by the proviso of Section 11(A).

17. On the basis of the judgments cited by the employers, a request had been made by the counsel concerned that even though no inquiry was held or the domestic inquiry that was held was found to be defective, the Labour Court had the jurisdiction to re-appreciate the evidence led by both the parties independently and come to the conclusion whether the termination order was indeed illegal and arbitrary. This power the Labour Court did not exercise properly.

18. I have perused the award impugned and I find that after going through the evidence on record, the Labour Court found that the charge that was framed against the workman had not been proved independently by adducing evidence by the employer before the Labour Court also. After examining evidence both oral and documentary produced by both the sides before it, the Labour Court has come to the conclusion that the dismissal order dated 3.9.1983 dispensing with the services of Teekam Singh, the workman had been passed arbitrarily and illegally and therefore it has found it appropriate to set it aside.

19. The Hon'ble Supreme Court in Harjinder Singh vs. Punjab State Warehousing Corporation (2010) 3 SCC 192 has held that judicial review of awards passed by Industrial Tribunals is very limited. The relevant paragraphs of this judgment reads as under:-

38."-----Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty- bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43- A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues.-----"

39."-----A careful reading of the judgments reveals that the High Court can interfere with an Order of the Tribunal only on the procedural level and in cases, where the decision of the lower courts has been arrived at in gross violation of the legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistakes in admitting evidence illegally or have made grave errors in law in coming to the conclusion on facts. The High Court granting contrary relief under Articles 226 and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it.-----"

I therefore do not find it a fit case to interfere in the findings of facts recorded by the Labour Court.

20. With regard to the relief admissible to Teekam Singh, the Labour Court has considered the fact that Teekam Singh had deposed before it that he was not employed elsewhere from the date of his dismissal till date of decision of the adjudication case. At the same time it has recorded that Teekam Singh had bought a scooter and had also been allotted a house by the Kanpur Development Authority and has come to the conclusion that the Teekam Singh "did something or the other" to eke out a living and it cannot be said that he was unemployed throughout.

21. The Labour Court therefore, while setting aside the order dated 3.9.1983 and giving reinstatement with continuity in service to Teekam Singh, has at the same time given only one-fourth of the backwages admissible to him alongwith litigation cost of Rs.300/- in its award dated 22.4.2004.

22. It has also been argued by the learned counsel for the employers that while setting aside the order of dismissal, the Labour Court had noticed the fact that Gunny Bag Section in which Teekam Singh was working had already closed down in the factory concerned, and therefore there was no post on which Teekam Singh could be reinstated, yet the order of the reinstatement was passed.

23. Shri Namit Kumar Sharma holding brief of Shri Pankaj Sharma appearing for Teekam Singh the workman has argued that the award passed by the Tribunal need be set aside only with regard to denial of full backwages to the workman. When the Adjudication Case No. 257 of 1984 was filed by him, Teekam Singh had stated therein that he was unemployed all throughout and in his oral statement also before the Labour Court, he had made this specific statement that he was unemployed after his dismissal. Even though he got registered in the Employment Exchange, he could not get a suitable job.

24. Initially, when the employers filed their written statement on 26.2.1985 they stated nothing regarding gainful employment of the workman and again on 27.6.1985, the employers filed a list of documents which did not contain a single document relating to gainful employment of the workman. There was not a single pleading regarding gainful employment of the workman. Later on, the attempts were made by the employers by moving an amendment application on 28.4.1999 that the workman was gainfully employed and had filed Income Tax returns for the year 1997-1998 and 1998-1999. A copy of the Bill of the year 1995 issued by Kanpur Department Authority to the workman showing cost of EWS House and a copy of registration certificate of Scooter No.UHJ 805 were tried to be filed as additional documents but were not taken on the record nor any exhibit number was given to them by the Labour Court, since there was no pleadings regarding gainful employment of the workman at the time of filing of written statement. The said documents having been filed later on were not even proved by the employer.

25. It has been argued by the learned counsel for Teekam Singh that the EWS House said to be alloted by Kanpur Development Authority was on a Hire Purchase scheme and was allotted to the workman prior to his dismissal from service in the Year-1981, and House No.I/198 Vishwa Bank Colony, Gujaini, Kanpur has not been transferred in the name of workman even till the date of filing of writ petition No.3794 of 2005 by him. Scooter No.UHJ 805 is of 1980 Model and he had purchased the same second hand for a sum of Rs.2500/- in the Year-1995/1996.

26. It has been also argued by Shri Namit Sharma appearing for the workman that there are several judgments of the Hon'ble Supreme Court and by this Hon'ble Court which say that unless it is proved that the workman was gainfully employed, the Labour Court could not make such a presumption.

27. On the issue of back wages to be awarded in favour of the workman, it has been held by the Hon'ble Supreme Court in the case of Shiv Nandan Mahto v. State of Bihar & Ors. 2013 (11) SCC 626 that if a workman is kept out of service due to the fault or mistake of the establishment/ company he was working in, then the workman is entitled to full back wages for the period he was illegally kept out of service. The relevant paragraph of the judgment reads as under:

"5. .... In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the Appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the Appellant could not have been denied the benefit of backwages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the Appellant was entitled to be paid full backwages for the period he was kept out of service."

28. Further in General Manager, Haryana Roadways Vs. Rudhan Singh (2005) 5 SCC Page 591, a three judge bench of the Hon'ble Supreme Court considered the question whether backwages should be awarded to the workman in each and every case of illegal retrenchment. The relevant paragraph reads as under:-

"-----There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section-25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily- wage employment though it may be for 240 days in a calendar year."

29. Subsequently, in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324 it was held by the Supreme Court as under:

"The propositions which can be culled out from the aforementioned judgments are:

i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. ........ vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised.

It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra)....."

30. On due consideration of rival submissions I find that in the present case, the employer had tried to amend his pleadings to prove the fact of gainful employment of the workman, by way of moving an amendment application which was rejected by the Labour Court on 29.11.2000 and the employer thereafter did not make any attempt to challenge the said rejection of the application. The list of documents filed later on containing alleged Income Tax returns, of 1997-98-99 raise a suspicion as it is not clear as to how the employer got hold of ITR, when the workman was not working with it. The fact of buying a second hand scooter in 1996 for Rs.2500/- or purchasing and a house under EWS from Kanpur Development Authority on Hire Purchase scheme of Rs.137/- per month for a period of 20 years would not lead to a presumption that the employee was so gainfully employed as to be earning atleast Rs.1040/- per month, which he use to get at the time of his termination while working with the employer. The presumption of the Labour Court that the employee must have been "doing something atleast" cannot be said to passed on any material on record. 31. However, the fact remains that the Labour Court is the first and only Court dealing with factual disputes and factual disputes being raised by the employer and the employee have been dealt with in detail in its award by the Labour Court. This Court cannot adjudicate over the factual aspects in dispute, but one thing is clear from the record that the employer had tried to compromise with the workman during the pendency of the writ petition and about Rs.11 lakh were offered as full and final statement of the claim of the workman with respect to arrears of backwages and also in view of reinstatement as ordered by the Labour Court. This attempt to compromise had failed because, as has been pointed out by the counsel for the workman, the workman concerned had been illegally dismissed from service and at the time of dismissal he was getting Rs.1040/- per month, in 1983. As per the award passed by the Labour Court one-fourth of the backwages from the date of illegal dismissal i.e. 3.9.1983 to 22.4.2004, the date of the award, alongwith other allowances itself would come to a huge amount. Besides, reinstatement was ordered which reinstatement, this Court had stayed by means of an interim order subject to compliance of Section-17(B) of the Industrial Disputes Act. There is no evidence on record that the employer complied with the conditional interim order and made payments to the workman.

32. It has also been argued by the counsel for the workman that had the workman remained in service he would certainly have been entitled to revisions of pay as admissible to other employees and also increments and even promotional pay in case of promotion as he had sufficient service left at the time of his illegal dismissal.

33. It is the case of the employer that the Gunny Bag Section in which the workman was working as a chemist / supervisor has been closed down thereafter and there was no possibility of employing the workman after closing down of the section and he would certainly have been given voluntary retirement like other workers of his section were given.

34. This Court cannot enter into hypothetical arguments made on behalf of the employers as well as the workman. Since Rs.11 lakhs was offered by the employer itself in sometime in 2015, which was refused as being inadequate by the workman, it would be appropriate that instead of directing for reinstatement of the employee in a non-existent Gunny Bag Section or on an equivalent post in the Employer's Establishment when so much bad blood exists due to litigation between the parties, these writ petitions are disposed of with the direction to the employer to pay Rs.20 lakhs as full and final settlement of all dues of the employee and the award made by the Labour Court impugned in these writ petitions is modified to this extent.

35. Let Rs.20 lakhs only be paid to the workman as compensation by the employer within three months of the date a certified copy of this order is made available to them. This amount shall be deposited in the Labour Court which shall ensure its timely payment to the workman. The amount payable under Section-17(B) of the Central Industrial Disputes Act as directed by an interim order of this Court, if paid already to the workman in compliance thereof shall be adjusted in the amount of Rs.20 lakhs ordered by this Court as compensation to the workman.

Order Date :-15.5.2017

S Rawat