U.P.S.R.T.C Thru Managing ... vs Presiding Officer Labour Court ...
2019 Latest Caselaw 3877 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 26
 

 
Case :- MISC. SINGLE No. - 23090 of 2017
 
Petitioner :- U.P.S.R.T.C through Managing Director and others Respondent :- Presiding Officer Labour Court Faizabad and another
 
Counsel for Petitioner :- Dhirendra Chaturvedi
 
Counsel for Respondent :- C.S.C
 

 
Hon'ble Sudhir Agarwal, J.

1. Heard Sri Dhirendra Chaturvedi, Advocate, for petitioner and learned Standing Counsel for respondents.

2. This is employer's writ petition filed by U.P. State Road Transport Corporation (hereinafter referred to as "UPSRTC") being aggrieved by order dated 17.01.2017 passed by Labour Court, U.P. in Adjudication Case No. 20 of 1998. Respondent-2, Workman, was a Conductor in UPSRTC and on the charge of carrying passengers without ticket, inquiry was conducted and, thereafter, major penalty of removal was imposed upon him. Workman raised an industrial dispute. In exercise of powers under Section 4-K of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as "Act, 1947"), following Reference was made for adjudication to Labour Court:

^^D;k lsok;kstd }kjk vius Jfed Jh dfiynso flag iq= Jh Hkwyu flag dh lsok;sa fnukad 22-03-90 ls lekIr fd;k tkuk vuqfpr ,oa voS/kkfud gS ;fn ugha rks lEcfU/kr Jfed D;k [email protected] vuqrks"k ikus dk vf/kdkjh gS rFkk vU; fdl fooj.k lfgrA^^

"Whether termination of services by employer of its workman Sri Kapildev Singh son of Sri Bhulan Singh with effect from 22.03.90 is unjust and illegal. If not, to what benefit/relief the workman is entitled to and with with further details?"

(English Translation by Court)

3. Labour Court found that neither departmental inquiry was conducted in accordance with law giving adequate opportunity of defense to employee concerned nor the punishment is justified. Consequently, it has answered the Reference by holding that termination of Workman was illegal and bad in law and relief of reinstatement has been granted vide award dated 17.01.2017 but with regard to back wages, it has awarded only 20 per cent back wages.

4. Learned counsel for petitioner contended that Workman was carrying passengers without ticket which was a serious misconduct, therefore, he was rightly awarded punishment.

5. Be that as it may, we find that in the case in hand before imposing major penalty no oral inquiry was conducted inasmuch on 28.07.1989 charge-sheet was handed over to Workman and on 29.07.1989, i.e., on the very next day, inquiry report was submitted. A major penalty, without conducting regular inquiry or oral inquiry could not have been awarded. Law in this regard is well settled by series of judgments of this Court as well as Apex Court and it may be useful to refer few of them as under.

6. In State of Uttar Pradesh Vs. Saroj Kumar Sinha, (2010) 2 SCC 772, Court has held:-

"An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."

"When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/ removal from service." (emphasis added)

7. Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 where Court said:-

"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."

8. This Court also has taken same view earlier in Subhash Chandra Sharma Vs. Managing Director, U.P. Co-op. Spinning Mills Federation Ltd., Kanpur and another, 2000(1) UPLBEC 541 and said:

"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."

"In Meenglas Tea Estate v. The workmen., AIR 1963 SC 1719, the Supreme Court observed "It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted".

In S.C. Girotra v. United Commercial Bank 1995 Supp. (3) SCC 212, the Supreme Court set aside a dismissal order which was passed without giving the employee an opportunity of cross-examination. In State of U.P. v. C. S. Sharma, AIR 1968 SC 158, the Supreme Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine these witnesses and to lead evidence in his defence. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160, (vide para 66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd. v. Their Workmen, (1963) II LLJ. 396, and in Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ. 78 (SC).

Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348, Uma Shankar v. Registrar, 1992 (65) FLR 674 (All)."

9. The above judgment was followed by a Division Bench of this Court in Subhas Chandra Sharma v. U.P.Co-operative Spinning Mills and others reported 2001 (2) UPLBEC 1475 wherein Court held:

"In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of this Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541, against which SLP has been dismissed by the Supreme Court on 16-8-2000."

10. This Court in Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others, 2010(1) UPLBEC 216, after a detailed analysis of earlier precedents on subject, observed as under:

"Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of levelling them by means of the charge sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.

The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008(3) ESC 1667 and the Court has clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment."

11. In Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570 (All), also this Court had an occasion to deal with the same issue and held:

"At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that hose documents are sufficient enough to prove the charges.

In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in exparte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, enquiry officer has to be cautioned in this respect."

12. In another case in Subhash Chandra Gupta v. State of U.P., 2012(1) UPLBEC 166 (All), a Division Bench of this Court, after survey of law on this issue, said:

"It is well settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the Apex Court in State of U.P. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541.

A Division Bench decision of this Court in the case of Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667 held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under:-

"10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.

11. A Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541, considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh Vs U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005."

13. In Chamoli District Co-operative Bank Ltd. Vs. Raghunath Singh Rana and others, AIR 2016 SC 2510 entire law on the subject has been reviewed and reiterated and Court has culled out certain principles as under:

"i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.

ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.

(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.

(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any."

14. The principal of law emanates from the above judgments is that initial burden is on the department to prove the charges. In case where inquiry is initiated with a view to inflict major penalty, department must prove charges by adducing evidence by holding oral inquiry.

15. When a major punishment could have been imposed, department has to prove charges against delinquent/employee by examining witnesses and by documentary evidence. In the present case neither any witness was examined by department nor any one has been examined to prove relied on documents in oral inquiry.

16. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary.

17. In the case in hand, punishment imposed upon employee, therefore, is patently illegal and in utter violation of principles of natural justice and, thus, has rightly been set aside.

18. The next argument is that 20 per cent back wages awarded to Workman are excessive inasmuch he remained out of employment for about eight years and, therefore, no back wages ought to have been awarded.

19. However, I find no force in this submission also. In my view, Labour Court has been lenient enough and considerate towards Employer by awarding only 20 per cent back wages though facts of this case justify award of back wages on much higher side.

20. When an order of termination by way of punishment i.e dismissal or removal is set aside being in violation of principle of natural justice, such an order of punishment renders in nullity and legal consequence is that concerned employee was never terminated by way of removal or dismissal and has already continued in service. That being so, question of direction of reinstatement in fact is a misnomer. Since such a person in law continued in service without any interruption as if no order of termination was ever passed. It is only to avoid any administrative doubt that a direction of reinstatement is normally given but the nature of such an order is nothing but a declaration that termination of service by way of dismissal or removal is a nullity and the natural consequence is that incumbent concerned is deemed to continue in service as for he was never terminated. That being so, it is normal rule that incumbent is entitle for all consequential benefits as for he was never terminated. Consequently when an order of termination is set aside on the ground that it was not legally passed following the procedure laid down in law, the concerned employee is not supposed to be made to suffer for something for which he was not responsible inasmuch an illegal order obviously could have resulted due to negligence or illegality committed by concerned authorities i.e Enquiry Officer or Disciplinary Authority and above and for their fault employee concerned is not to be made to suffer otherwise it will amount to victimize a person for something for which he was not at fault even if order of termination is found to be illegal and void ab initio.

21. In Pawan Kumar Agrawala Vs General Manager-II and Appointing Authority, State Bank of India and others, 2015 (13) SCALE 45, Court having considered various earlier authorities on the subject said in para 38:-

"38. 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.

ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

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. ...

iv) The cases in which the Labour Court/Industrial Tribunal ... finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the Court or Tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power Under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

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 (1979) 2 SCC 80.

vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as matter of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman." (emphasis added)

22. Thereafter in the penultimate para 20 in Pawan Kumar Agrawala (supra), Court held that findings of Enquiry Officer on the charges are vitiated on account of non compliance of the statutory Rules and the principles of natural justice. In the absence of evidence, order of reinstatement without full back wages is unjustified in law. Court after setting aside judgment of High Court, awarded reinstatement with full back wages for the period from date of removal till the date employee attained age of superannuation on the basis of periodical revisions of salary but after deducting amount of pension already paid from backwages.

23. In K.S. Ravindran Vs Branch Manager, New India Assurance Company Ltd., 2015 (7) SCC 222, Court referred to legal principles laid down in its earlier decision in Mohan Lal Vs Bharat Electronics Ltd., 1981 (3) SCC 225 and quoted the following observation:

"But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits." (emphasis added)

24. Earlier, in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, 2013 (10) SCC 324, Court said;

"The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. " (emphasis added)

25. The authority of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (supra) has also been followed in Bhuvnesh Kumar Dwivedi Vs Hindalco Industries Ltd., JT 2014 (6) SC 190, Tapash Kumar Paul Vs BSNL and another, JT 2014 (7) SC 589, Raghubir Singh Vs General Manager, Haryana Roadways, 2014 (10) SCC 301 and K.S. Ravindran vs. Branch Manager, New India Assurance Company Ltd. (supra).

26. In Tapash Kumar Paul Vs BSNL and another (supra), Court observed that view taken in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (supra) is correct view founded on three Judges Bench judgment in Surendra Kumar Verma and Ors. v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi and Another, (1980) 4 SCC 443, and another three Judge's Bench judgment in Hindustan Tin Works (P) Ltd. v. Employees of M/s Hindustan Tin Works Pvt. Ltd. and others, (1979) 2 SCC 80, and following the same, Court held that employee is entitled to reinstatement with full back wages since in the absence of full back wages, the employee will be distressed and will suffer punishment for no fault of his own.

27. In view of above exposition of law, I find no error in the impugned award so far as issue of back wages is concerned.

28. No other point has been argued.

29. In the light of discussions made hereinabove. I do not find any manifest error in the award of Labour Court warranting interference.

30. The writ petition lacks merits. Dismissed.

Dt. 01.05.2019

PS