U.P. State Road Transport ... vs State Of U P And 2 Others
2021 Latest Caselaw 10134 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 
 
Court No. - 18
 
Case :- WRIT - C No. - 6374 of 2021
 
Petitioner :- U.P. State Road Transport Corporation
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Jagram Singh,Rahul Agarwal
 
Counsel for Respondent :- C.S.C.,Gopal Narain Srivastava
 

 
Hon'ble Ajay Bhanot,J.

The petitioner has assailed the award dated 30.01.2020 rendered by the labour court in adjudication Case No. 16 of 2009 (Satish Kumar Vs. Regional Manager U.P.S.R.T.C, Saharanpur) deciding the reference against the employer and directing the respondent no. 3 workman to be reinstated in service with continuity of service. The labour court in the impugned award has held the workman entitled to 50% of the backwages for the period of his termination.

The reference before the labour court was as to whether the termination of services of the respondent No. 3 workman Satish Kumar on 07.05.2005 were valid and legal.

Shri Jagram Singh and Shri Rahul Agarwal, learned counsels for the petitioner pointing the fault lines in the award submit that the labour court neglected to consider the findings returned by the enquiry officer. The labour court did not return findings on relevant issues upon an independent enquiry while exercising powers under Section 11-A of the Industrial Disputes Act (Section 6(2) (a) of the U.P. Industrial Disputes Act). The absence of the workman was wilful and findings to the contrary in the impugned award are perverse. The punishment was proportionate to the nature of the misconduct and was not liable to be reversed.

Sri Gopal Naraian Srivastava, learned counsel for respondent No. 3 workman submits that the labour court had exercised its power under Section 6(2) (a) of the U.P. Industrial Disputes Act as consistent with the statutory mandate. The labour court was under an obligation of law to enquire into the proportionality of the punishment imposed upon the petitioner. The employer had erred in law by imposing a disproportionate punishment for the misconduct the respondent No. 3 was charged with.

Heard learned counsel for the parties.

The relevant and undisputed facts essential for just adjudication of the controversy can be prised out from the record of the writ petition. No useful purpose will be served by exchanging affidavits. With the consent of parties the writ petition is being decided finally.

The respondent No. 3 workman was a conductor in the U.P.S.R.T.C. Two charge sheets were drawn up against the respondent No.3 on 28.8.2003 and 27.04.2004 wherein various charges of departmental misconduct were laid out. In substance the charge against the respondent No. 3 workman was that he wilfully absented himself from duty for various periods. The periods of wilful absence which became the subject matter of the domestic enquiries are extracted below:

(I) 28.03.2003 to 27.11.2003.

(II) 19.12.2003 to 24.12.2003.

(III) 29.12.2003 to 14.01.2004.

(IV) Continuous absence with effect from 18.01.2004.

The domestic enquiries indicted the workman of all charges laid out against him. The disciplinary authority on the footing of the findings of guilt made by the domestic enquiry against the respondent No. 3 workman passed the punishment of dismissal from service.

The domestic enquiry reports into the two chargesheets were submitted on 11.07.2004 and 13.09.2004.

The labour court in the impugned award has found that the enquiries were conducted in adherence to law. No fault or illegality in the conduct of the enquiry could be established before the labour court. Accordingly the impugned award upheld the enquiry reports.

The challenge to the proportionality of the punishment for the misconduct the respondent No. 3 was charged with became the sole issue of consideration by the labour court.

The domestic enquiry report dated 11.07.2004 enquired into period of absence of the respondent No. 3 workman from 28.03.2003 to 27.11.2003. Before the enquiry officer the only defence tendered by the respondent No. 3 workman was that his absence for various period was not wilful and the same was caused by the terminal ill-health of his wife. The respondent No. 3 also claimed that he had sent leave applications alongwith medical certificates to the petitioner by U.P.C postal mode. The enquiry officer found the U.P.C receipts to be forged. The enquiry officer also noticed that proper mode of service of application which a reasonable person would adopt would be to send the same by registered post or submit the application personally. There was no good cause shown by the respondent No. 3 workman, to deviate from the said modes. The defence of the respondent No. 3 workman was hence disbelieved. On the back of the such reasoning and after appraisal of the aforesaid evidences the enquiry officer concluded that the absence of the workman was wilful and without authority of law.

The second domestic enquiry report dated 13.09.2004 enquired into the period of absence of respondent No. 3 from 19.12.2003 to 24.12.2003 as well as 29.12.2003 to 14.01.2004 and the continuous absence from 18.01.2004. The enquiry officer in the said enquiry report has noticed the leave application submitted by the respondent No. 3 workman wherein medical leave was prayed for on account of the illness of his wife. The enquiry officer found that medical leave cannot be sanctioned to a workman on account of illness of his wife. The workman was entitled to medical leave had he himself suffered from illness. He could have then made an application for medical leave to be processed as per law. Further the enquiry officer found that the burden was upon the respondent No. 3 workman to establish the illness of his wife by adducing credible medical evidence and he ought to have applied before the competent authority for leave. He failed to do so and simply absented himself. The respondent No. 3 workman joined duties on 15.01.2004 and produced medical certificates of his wife. The respondent No. 3 workman had clearly flouted the leave rules applicable to him. He failed to submit timely application for leave and also did not tender medical certificates in support thereof. Post facto medical certificates were not accepted. The absence from 29.12.2003 to 14.01.2004 was found to be unauthorized and wilful.

The enquiry report dated 13.09.2004 concludes with the findings that the workman did not tender any defence to the charge of continuous absence with effect from 18.01.2004. The charge of continuous absence from duty w.e.f. 18.01.2004 was duly established against the workman/respondent no. 3.

The labour court after holding that the domestic enquiry was fair and lawful entered into consideration of the proportionality of the punishment for misconduct which stood proved in the departmental enquiry.

The labour court upon perusal of the material and evidences before it found that the respondent No. 3 workman was absent from duty without sanction of his leave on account of his ill-health as well as the medical condition of his wife.

The labour court in the impugned award records that the enquiry officer in his deposition had admitted to the effect that the medical report submitted by the respondent No. 3 workman was part of personal documents of the respondent No. 3. However the same was not referenced in the enquiry report.

The judgment of the labour court further records that the enquiry officer did not send the medical certificates for examination. But he returned a finding on the authenticity of the said medical certificates after perusing the same. On this footing the finding of the enquiry officer was invalidated.

The impugned award of the labour court found that the respondent No.3 workman had defended his absence on ground of his ill-health and the medical condition of his wife. He had submitted medical reports before the competent authority. The medical certificates submitted by the respondent No. 3 workman were in the record. The said certificates were never got examined for their authenticity by the employer. On this footing the labour court found that the absence of the respondent No. 3 for various periods, namely, 28.03.2003 to 27.11.2003, 19.12.2003 to 24.12.2003 and 29.12.2003 to 14.01.2004 was occasioned by his health condition and ill health of his wife. The absence was not wilful. The punishment of dismissal by order dated 07.05.2005 was held to be disproportionate to the misconduct and was accordingly reversed and substituted by a lesser punishment.

It is noteworthy that no findings has been made in the impugned award on the charge of continuous absence of the workman from duty with effect from 18.01.2004.

The narrative has the advantage of authorities in point which were cited at the Bar. The authorities extracted hereunder will form the legal backdrop in which the impugned award will be examined.

The power of the labour court to enquire into the proportionality of punishment imposed upon the workman flows from Section 6(2) (a) of the U.P. Industrial Disputes Act which good authority has found to be in pari materia with Section 11-A of the Industrial Disputes Act. For ease of reference Section 11-A of the Industrial Disputes Act is extracted hereunder:

"[11-A. Powers of Labour Courts, Tribunal and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Curt, Tribunal or National Tribnal or adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:

Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely on the material on record and shall not take any fresh evidence in relation to the matter]"

"[(2-A) An award in an industrial dispute relating to the discharge or dismissal of a workman may direct the setting aside of the discharge or dismissal and re-instatement of the workman on such terms and conditions if any, as the authority making the award may think fit, or granting such other relief to the workman, including the substitution of any lesser punishment for discharge or dismissal, as the circumstances of the case may require.]"

The breadth of powers of the labour court under Section 11(a) of the Industrial Disputes Act was expounded by the Supreme Court in Workmen Vs. Fire Stone1. The statement of law entered in para 36 of Firestone (supra) is the locus classicus in point:

"We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron & Steel Co. Ltd. Case (supra), existed. The conduct of disciplinary proceedings and the punishment to be imposed where all considered to be a managerial function with which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or, unfair labour practice. This position, in our view, has now been changed by Section 11-A. The words "in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified" clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a sanctification being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron & Steel Co. Ltd. Case (supra), can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter."

The need for the labour court to exercise powers under Section 11-A of the U.P. Industrial Disputes Act in a judicial manner was emphasized in Mavji C. Lakum Vs. Central Bank of India2 :

"23.There can be no dispute that power under Section 11-A has to be exercised judiciously and the interference is possible only when the Tribunal is not satisfied with the findings and further concludes that punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. Besides, the Tribunal has to given reasons as to why it is not satisfied either with the findings or with the quantum of punishment and that such reason should not be fanciful or whimsical but there should be good reasons."

Similarly the applicability of Wednesbury principles of reasonableness and the doctrine of proportionality in an enquiry under Section 11-A of the Industrial Disputes Act was also affirmed in Mavji (supra):

"25. Though the learned Judge had discussed all the principles regarding the exercise of powers under Section 11-A of the Industrial Disputes Act as also the doctrine of proportionality and the Wednesbury principles, we are afraid the learned Judge has not applied all these principles properly to the present case. The learned Judge has quoted extensively from the celebrated decision of Workmen V. firestone Tyre & Rubber Co. of India (P) Ltd. However, the learned Judge seems to have ignored the observations made in AIR para 32 of that decision where it is observed that : (SCC p. 830 para 36)

"36.... The words ''in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified' clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. ... The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct but also to differ from the said finding if a proper case is made out."

Section 6(2) (a) of the U.P. Industrial Disputes Act was held to be analogous to Section 11-A of the Industrial Disputes Act in Scooter India Ltd. Lucknow Vs. Labour Court 3.

The factors which will guide the exercise of broad discretion of the labour court while deciding the issue of proportionality of punishment shall now be discussed.

The Industrial Disputes Act was promulgated with a view to ameliorate the conditions of workman, to protect them against any unfair labour practices, and to ensure industrial peace. The intendment of the Act was to ensure better employer employee relationships, to prevent and resolve industrial disputes and thus maintain industrial peace.

While exercising powers under Section 11-A of the Industrial Disputes Act (or Section 6(2) (a) of the U.P. Industrial Disputes Act as in this case) the labour court will have to co-relate and balance the rights of the workman with the imperatives of industrial peace and institutional efficiency. Liberal labour practices does not give licence for anarchic conduct. Good industrial relations have to be fostered to ensure better efficiency in the industry, a positive work culture which will promote industrial peace.

The doctrine of proportionality as propounded by various constitutional courts will have an important bearing on the decision making process to be followed by the labour court.

The labour court while deciding the proportionality of punishment has to examine the relevant findings of the domestic enquiry on their merits. In case such findings are perverse or not tenable in law the labour court will have to reverse those findings and record reasons for the same. The matter will not be left there. The labour court thereafter have to embark on an independent investigation into the facts and after receiving evidence if necessary shall return specific findings thereon.

The labour court in the impugned award has neglected to return a finding on the third charge namely continuous absence from duty with effect from 18.01.2004 onwards. This absence was proved and found to be wilful in the domestic enquiry proceedings. Since no contrary finding has been recorded in the impugned award, the domestic enquiry report in regard to the same has to be given effect to.

Secondly, the labour court has not examined some relevant findings returned by the domestic enquiry, and has not reversed the said findings. Domestic enquiries have a critical role to play in industrial relations. Domestic enquiries cannot be given a short shift or completely ignored by the labour court as was done in this case. This failure of the labour court is sufficient to vitiate the impugned award.

The labour court has baldly recorded that medical evidences attesting the illness of the respondent No. 3 workman were in the record and hence the absence was not wilful.

The labour court simply accepted the medical reports on their face value without examining their authenticity in an independent manner. This failure to exercise lawful jurisdiction vitiates the award since the said reports were categorically rejected by the enquiry officer.

Section 11-A of the Industrial Disputes Act/ Section 6 (2) (a) of the U.P. Industrial Disputes Act mandate that the labour court should make an independent consideration or cause an enquiry into the veracity of the stands of both parties and also the credibility of the evidence adduced before the labour court. Independent findings in that regard have to be returned by the labour court. In the impugned award the documentary and other evidences of the workman were accepted on their face value, and not tested for veracity by inviting evidence and independent application of judicial mind.

This approach of the labour court does not satisfy the mandate of Section 6(2) (a) of the U.P. Industrial Disputes Act and Section 11-A of Industrial Disputes Act.

The labour court placed exclusive reliance on certain parts of the testimony of the enquiry officer made before it. The aforesaid consideration is perverse, inasmuch as the testimony has to be considered as a composite whole and the credibility of the witness has to be examined accordingly. Parts of the deposition cannot be considered in isolation. In the instant case, the labour court has cherry picked parts of the deposition to support the conclusions reached by it.

At the expense of increasing the length of this judgment, the testimony of the enquiry officer before the labour court which is in the record indicates that the enquiry officer had testified that the statement of the workman that he intimated the employer about his illness was incorrect. The workman did not produce any medical certificate before the enquiry officer. The enquiry officer examined the personal record of the workman during the enquiry which did not contain any application for leave. The enquiry officer had also noted that the workman had only submitted one medical certificate at the time of his joining.

It is equally noteworthy that before the enquiry officer the sole defence of the respondent No. 3 workman for his absence from duty was the illness of his wife. However post facto the workman improved his case before the labour court by adding his own ill-health as the additional cause of absence from duty. These aspects were integral to the deposition of the enquiry officer. Whether the respondent workman could use the proceedings before the labour court to supply defects in his defence before the domestic enquiry also went to the root of the matter. Failure to consider the same renders the findings of the labour court perverse.

In the wake of preceding discussions this Court concludes that the findings of the labour court are vitiated and the award is liable to be set aside and is set aside.

Before parting it would be apposite in the interest of justice to examine the doctrine of proportionality. The judgments cited at the Bar on behalf of respondent No. 3 workman were rendered in the context of absence from duty which was not wilful. (Ref: Chairman cum Managing Director Vs. Mukul Kumar Chaudhuri4)

The records and facts as stated in the preceding part of the judgment support and fortify the conclusion of the employer/domestic enquiry that the absence of the respondent No. 3 workman from duty was wilful. Moreover, the findings of the domestic enquiry that the respondent No. 3 workman was continuously absent from 18.01.2004 onwards has not been considered or referenced or reversed by the labour court. The said findings was not successfully challenged and has attained finality. The findings of the enquiry officer are based upon due consideration of the material produced during the enquiry and the conclusions are reasonable. The domestic enquiry officer reached the applicable standards of evidence while returning the said findings.

It would not be out of context to mention that the petitioner No.1 is an instrumentality of the State within the meaning of Article 12 of the Constitution of India. It is engaged in the high purpose of providing public transportation to the common man at reasonable cost. The service conditions are governed by regulations duly framed by the competent authorities. There are no oppressive conditions of work, at least nothing has been brought out in the record. Instrumentalities in public sector undertakings cannot have rights surplus and duty deficit environment. The same will be contrary to public interest.

In case absence from duty is found to be wilful, the employer may pass orders for dismissal from service in the facts of a case. This is what has happened in the instant case.

Consequently, this Court concludes that the punishment imposed upon the petitioner by the employer for wilful absence from duty for various periods is reasonable and just.

The impugned award dated 30.01.2020 is liable to be set aside and is set aside.

The writ petition is allowed.

The Court appreciates the assistance rendered by Sri Jagram Singh, learned counsel as well as Sri Rahul Agarwal, learned counsel for the petitioner. Sri Gopal Narayan Srivastava, learned counsel for respondent No. 3 has also assisted the Court with great effort.

Order Date :- 12.8.2021

Nadeem Ahmad