U.P. State Road Transport ... vs Sri Om Prakash Tyagi And Another
2019 Latest Caselaw 5413 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 

 

 
Court No. - 18
 
Case :- WRIT - C No. - 8047 of 2010
 
Petitioner :- U.P. State Road Transport Corporation
 
Respondent :- Sri Om Prakash Tyagi And Another
 
Counsel for Petitioner :- Samir Sharma,Sunil Kumar Misra
 
Counsel for Respondent :- C.S.C.,Alok Kumar Srivastava,S.P. Singh
 

 
Hon'ble J.J. Munir,J.

1. This writ petition has been filed by the U.P. State Road Transport Corporation under Article 226 of the Constitution. It is directed against an award dated 02.12.2008 passed by the Industrial Tribunal(4), UP, Agra in Adjudication Case No. 6 of 2001.

2. The Industrial Tribunal has ordered respondent no. 1-workman (for short 'the workman') to be reinstated in service with effect from the date of his disengagement i.e. on 18.05.1998 granting continuity of service and all back wages, including allowances. The said award dated 02.12.2000 is hereinafter referred to as the 'impugned award.'

3. Heard Sri S.K. Mishra, learned counsel appearing for the petitioner and Sri Surya Prakash Singh, learned counsel appearing on behalf of the workman. Both sides have exchanged affidavits. Accordingly, this petition was admitted to hearing on 05.04.2019, and, heard forthwith with the consent of parties. Judgment was reserved on that day.

4. Shorn of avoidable detail, the workman was employed with the petitioner-U.P. State Road Transport Corporation (for short the 'employer') as a driver. He was posted in the Agra region. A report dated 25.04.1997 was submitted against the workman saying that on 24.041997, while he was deputed to operate Bus No. UAE-9668 plying on Agra-Jaipur route, the vehicle was attempted to be checked by the officers of the Corporation, to wit, Sardar Singh, Samar Singh and Shaukat Ali, all Assistant Traffic Inspectors. They signalled the bus to halt for a check at Sikandra. The report shows that though the workman saw the signal asking him to stop, he did not do so. Instead, he sped away due to which no checking, as intended, could be carried out. This checking en route during commercial operation was intended for the purpose of ascertaining, if there were any ticketless passenger being ferried on board, in order to make personal gains dishonestly by the conductor in connivance with the driver, at the cost of the employer's revenue.

5. A charge sheet founded on the aforesaid report was issued to the workman on 20.05.1997. He was placed under suspension pending inquiry by an earlier order dated 25.04.1997. A reply to the charge sheet was submitted by the workman, and a departmental inquiry was initiated against him. It appears that at the departmental inquiry two witnesses for the establishment were examined, to wit, Samar Singh and Shaukat Ali who appeared before the Inquiry Officer on 12.08.1997. The witnesses supported the employer's case and one of them, that is to say, Sardar Singh, Assistant Traffic Inspector was cross-examined by the workman also. The workman declined to cross-examine the other witness Shaukat Ali. The workman himself appeared in support of his case as a defence witness and stated that his reply to the charge sheet, may be taken to be his statement at the inquiry. He further stated that he has nothing further to say or to produce any other witness or evidence in his support.

6. It appears from the stand taken by the workman in his defence that has been referred to in detail in the impugned award, the workman said that the place where he is claimed to have been signalled to stop for a checking at Sikandra, had a long line-up of trucks parked on both sides of the road/highway. It is quite possible that on that account he could not notice the signal to stop. He, however, denied any complicity in the matter, and said that at Sikandra, he had boarded off passengers and taken others on board. Thus, there are no chances of the checking team not being able to access the bus in order to carry out the desired checking. It has also figured as one of the workman's grievance, that the bus conductor who along with him was placed under suspension on the same charges, after inquiry, has been reinstated in service, whereas the petitioner has been deprived of all his salary for the period of suspension and has been ordered to be removed from service. He submits that this differential treatment between two identically circumstanced employees against whom the same evidence appears at the conclusion of the inquiry, is discriminatory and unfair. The workman was served with a show cause notice on 18.12.1997. He was provisionally reinstated in service, pending outcome of the disciplinary proceedings on 30.04.1998. The workman submitted a reply to the show cause notice, and by an order dated 08.05.1998, the workman was removed from service.

7. The workman thereupon raised an industrial dispute under Section 4 K of the U.P. Industrial Disputes Act which was referred for adjudication to the Industrial Tribunal-IV, UP, Agra, where the reference was registered as Adjudication Case No. 6 of 2001. The reference made, is in the following terms:

"Whether the decision of the Employer to terminate the services of Sri Om Prakash Tyagi S/o Phool Singh (driver) with effect from 18.05.1998 is proper and lawful? If not, is the workman entitled to any relief and from which date and on what terms?"

8. It appears that the Industrial Tribunal before proceeding to address the reference on merits, framed a preliminary issue that reads to the following effect:

"Whether the domestic inquiry held is lawful and proper? If not, its effect?"

9. The Tribunal in the first instance proceeded to determine the aforesaid preliminary issue and on consideration of the evidence, recorded the following findings. The record of the inquiry does not make it explicit, whether the workman was read out the entire charge sheet during inquiry. It was also recorded that papers of the proceedings do not indicate as to who would be the witnesses appearing for the employer, a fact mentioned by the workman in his written statement, rejoinder affidavit and evidence before the Tribunal. It has been also recorded for a finding by the Tribunal that the Inquiry Officer before the inquiry was held had an obligation to inform the workman-charged to secure the services of a competent defence assistant. It has been held that it was the inquiry officer's duty to advise the workman to secure the services of such a defence assistant, and if he desired that, permit him to do so. It was also recorded that an appraisal of the record also shows that the Inquiry officer is still in service and posted at Agra, but has not appeared before the Tribunal to prove his report or in support of the proceedings of the domestic inquiry.

10. The Tribunal has proceeded to record a further finding that it is, therefore, clear that the only competent witness about the inquiry proceedings undertaken was the Inquiry Officer, and his non appearance before the Tribunal shows, that he has no interest in the proceedings before it. It is also held that in case the Inquiry Officer had appeared, correct facts would have been disclosed to the Tribunal, which would have proved facilitative. It was also pointed out that on behalf of the Employer, a Clerk has been asked to appear as a witness, who is not at all personally acquainted with the inquiry proceedings. There is then a decisive finding recorded to the following effect:

"It is also clear that persons on the basis of whose report the workman has been proceeded with against and the inquiry proceedings initiated, neither appeared before the Inquiry Officer during the course of the domestic inquiry or did they appear before the Tribunal"

11. On the said facts, it is inferred that the proceedings of the inquiry were not fair or without bias . It is also held that rules governing their domestic inquiry by the employer were observed in breach and inquiry was done merely as an eye wash on the basis of which no action taken, could be sustained. It is also held that the inquiry against the workman was not lawful and proper, and the preliminary issue was decided in favour of the workman.

12. From the aforesaid finding on the preliminary issue, it was concluded that the domestic inquiry is illegal and improper. It has thereafter been remarked that it is surprising that none of the three complainants appeared before the Tribunal as witnesses, whereas they were eye witnesses. Their absence from the proceedings before the Tribunal proves, as the Tribunal has concluded, that the facts and circumstances of the case were very different from those shown in the complainant's report. It has also been held that the witness who was examined by the employer was never a part of the inquiry proceedings, or does he have any direct knowledge about whatever is the subject matter of disciplinary proceedings. All his evidence is apparently hearsay. As against the aforesaid stand, the workman in his written statement as well as in his evidence has admitted the fact that on 24.04.1997, the conductor was operating the bus in question along with him, against whom a similar report was submitted. The conductor has been exonerated and reinstated in service. However, the workman, based on the same evidence and charge, has been removed from service. The Tribunal has held that it is a matter where the charges against the two workmen were identical, upon which both of them have been suspended and departmentally proceeded with, but what are those circumstances in which one has been exonerated whereas the other has found guilty, have not been shown by the Employers. The Tribunal has also held that in such circumstances where the three complainants neither appeared before the domestic inquiry or before the Tribunal, the witness who has appeared on behalf of the employer does not inspire confidence. It was held that the employers have failed to prove their case against the workman, whereas the workman has proved his defence successfully.

13. Indeed, so far as the finding of the Industrial Tribunal about the denial of opportunity is concerned, the same appears to be clearly flawed. The various parameters on which the Industrial Tribunal has written its finding of violation of principles of natural justice are hardly parameters that could lead to that inference. The record of the proceedings generally shows good adherence to principles of natural justice. One particular finding recorded by the Industrial Tribunal to the effect that the members of the checking team, who are the complainants, neither appeared before the domestic inquiry as witnesses for the employer or before the Industrial Tribunal, suffers from an error apparent on the face of the record. A perusal of the documents annexed at pages 25-26 of the paper book, carries the statement of one of three members of the checking team/complainant, Sardar Singh. It clearly shows that he appeared at the inquiry and supported the employer's case.

14. Again a perusal of the inquiry report annexed as annexure no. 3 to the writ petition also shows that the other member of the checking team Shaukat Ali, also appeared before the Inquiry Officer and supported the employer's case. Of these two witnesses, Sardar Singh was cross-examined by the workman. Thus, the finding of the Tribunal to the effect that none of the complainants who actually saw the occurrence appeared either before the Inquiry Officer or before the Tribunal, suffers from an error apparent on the face of the record.

15. Learned counsel for the respondent-workman in support of his contention that the members of the checking team were required to be examined before the Inquiry officer and also before the Tribunal, has placed reliance upon the decision of their Lordships of Hon'ble Supreme Court in A.P.S.R.T. Corporation vs. G. Murali1. The said decision would not be attracted to the facts of the present case. This is so because in case of A.P.S.R.T. Corporation (supra), the finding of the Industrial Tribual holding charges numbers 2 to 5 relating to ticketless passengers on board not proved in the domestic proceedings, was approved by the Hon'ble Supreme Court on account of the fact that in the face of a clear denial that there were any ticketless passengers on board, none of the passengers were admittedly examined at the inquiry, where the finding of guilt was recorded. Here, the facts are apparent that two of the three members of the checking team who reported the workman, were duly examined before the Inquiry Officer and one of them, to wit, Sardar Singh, was also cross-examined. Thus, no assistance can be derived by the workman from the aforesaid decision of the Hon'ble Supreme Court, in the considered opinion of this Court.

16. Even otherwise, if the Industrial Tribunal had reached a conclusion good or bad, that there was a violation of principles of natural justice in the domestic inquiry, it was incumbent upon the Tribunal to take evidence itself and decide on merits, the worth of the charges against the workman. However, merely by holding the inquiry to be in violation of principles of natural justice, the Industrial Tribunal, on that finding alone could not have granted final relief by way of reinstatement with full back wages and continuity in service. Beyond this finding, the Industrial Tribunal would have to undertake a substantial exercise to determine whether the charges were proved or not. This course of action has not been adopted. In any case, the finding relating to violation of principles of natural justice having been found to be beset by an error apparent on the face of the record, and completely flawed, it is a case where the Industrial Tribunal must look into the matter afresh, based on the reference made to it by the State Government, in accordance with law and pass a fresh order expeditiously and within time indicated in this judgment.

17. There is another aspect of the matter which the Tribunal must bear in mind when it proceeds afresh. There has been a decisive shift and not quite recently that the Labour Court, or the Tribunal ought not decide an issue as preliminary, and instead, should decide all issues together. This change in judicial opinion figured quite early, the history of which has been retraced by this Court way back in 1999 in case of Kamala Nehru Memorial Hospital, Allahabad vs. Presiding Officer, Labour Court, Allahabad and others2, where Hon'ble Sudhir Narain, J. very succinctly described all that change in the law, that figures in paragraph nos. 9 to 13 of the report, which reads thus:

9. The Labour Court, on the pleadings of the parties, framed certain issues. Normally the management asks the Court to decide the issues as preliminary issues but sometimes it is with a view to delay the proceedings. The preliminary issues are decided to cut short matter instead of embarking upon the detailed enquiry on the pleadings of the parties after examining the oral and documentary evidence which may be adduced by the parties.

10. In D.P. Maheshwari v. Delhi Admn. and others. AIR 1984 SC 153, the Court observed :

"There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that Tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues."

Twelve years after this decision, the similar observation has been made in National Council for Cement and Building Materials v. State of Haryana and others, (1996) 3 SCC 206, as under :

"After the decision of this Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa, (1978) 2 SCC 213 in which a comprehensive definition of the word 'industry' was attempted to be given followed by legislative changes in the Industrial Disputes Act, it was thought that the Management or Establishments would give up their old habit of raising preliminary issues in Industrial References as to "whether they are an 'Industry' within the meaning of the Industrial Disputes Act or not", but Samuel Johnson's observation that "one of the maxims of civil law is that definitions are hazardous" is still true and this question continues to be raised almost in every case before the Tribunal."

The Court relied upon the decision in Cooper Engineering Limited v. Shri P.P. Mundhe. (1975) 2 SCC 661, wherein it was observed that the Industrial Tribunals should decide the preliminary issues as also the main issues altogether so that there may not be any further litigation at the interlocutory stage. It was further observed that there was no Justification for a party to the proceedings to stall the final adjudication of the dispute referred to the Tribunal by questioning the decision of the Tribunal on the preliminary issues before the High Court.

11. In Cipla Ltd. and others v. Ripu Daman Bhanot and another, (1999) 4 SCC 188, the Court cautioned that the Labour Court should not split the issues and made the following observation :

"We would only say that the Labour Court should decide all the issues together and shall not split the issues into preliminary or non-preliminary issues so that the proceedings may come to an end at the earliest."

12. The learned counsel for the petitioner relied upon the decision of a Division Bench of Karnataka High Court in Management, Rangaswamy and Co. v. D.V. Jagadish, Major and another 1990 (61) FLR 584, where an order was challenged in the High Court against the order directing the party to pay interim relief while the matter was pending before the Labour Court. One of the pleas raised was that the interim relief could not be granted till the question as to whether the claimant is a workman or not is decided. In that context, it was held that it is for the Tribunal or the Labour Court to decide any issue as preliminary issue considering the fact as to whether it touches the Jurisdiction of the Court and it is necessary to decide such issue before deciding other issues. This case does not lay down that the Labour Court is bound to decide an issue as a preliminary issue.

13. This Court in its Full Bench decision in Swarup Vegetable Products Industries Ltd. v. Labour Court-II, Meerut and others 1997 (77) FLR 548, overruled the decision in M/s. Star Paper Mills Ltd. v. Presiding Officer, Meerut, 1987 Labour and Industrial Cases 1854, wherein the Court had taken the view that if proper request is made at the appropriate stage either by an employer or an employee before the Tribunal or any other forum under the Act for the framing of a preliminary issue, the same may be considered and allowed and the Tribunal concerned may frame a preliminary issue. If such an issue goes to the root of the matter. Further observation was that the decision on a preliminary issue framed on the validity of the proceedings in the domestic enquiry will be a decision on jurisdictional fact and normally, a Court or Tribunal will not be acting arbitrarily, but also failing to exercise its jurisdiction if it does not accede to the request of an employer to frame a preliminary issue on the validity of the proceedings in the domestic enquiry and give a decision thereon. The Full Bench while overruling this decision observed :

"The Industrial Tribunal Labour Court should particularly bear in mind the provisions of Section 11A of the Central Act and Section 6 (2A) of the U. P. Act (U. P. Industrial Disputes Act), and remember that the main purpose of creating a forum for industrial adjudication is to avoid delay in disposal of proceedings. Viewed in this angle, we hold the Division Bench of this Court in the case of D.C.M. Shriram Industries Ltd. was not right in holding that the management can lead evidence to establish the charge against the workman only after decision on the issue whether domestic enquiry was fair and proper and, therefore, such issue should be taken as a preliminary issue. It is, accordingly, overruled. The decision of the single Judge in M/s. Star Paper Mills Ltd. (supra) is also overruled."

18. In view of this legal position the Tribunal would do well to decide all issues together; but that would not inhibit the Tribunal from taking evidence on merits of the charge, if on a reconsideration, it still finds violation of principles of natural justice or the inquiry not to be fair or otherwise flawed, in whole or in part.

19. In the result, this petition succeeds and is allowed in part. The impugned award dated 02.12.2008 passed by the Industrial Tribunal-IV, UP, Agra in Adjudication Case No. 6 of 2001 is hereby quashed. The adjudication case shall stand restored to the file of the Industrial Tribunal, which shall proceed to decide the same expeditiously considering the workman's age, and preferably within three months from the date of production of a certified copy of this order, bearing in mind the guidance in this judgment.

20. It is further provided that the sum of Rs. 6,71,213/- paid by the employer to the workman in compliance with the direction as to the back wages carried in the award, shall be retained by the workman, subject to such orders as may be finally made by the Industrial Tribunal.

21. There shall be no order as to costs.

Order Date :- 01.07.2019

Deepak