Ashok Kumar vs Delhi Transport Corporation
2006 Latest Caselaw 1643 Del

JUDGMENT

Manju Goel, J.

1. These two writ petitions challenge the same award of the Labour Court-II, Karkardooma Courts, Delhi dated 7.5.2003 passed in I.D. No. 272/1997. The fact leading to the impugned award are as under:

a) The workman-Ashok Kumar (hereinafter referred to as the `workman'), respondent in W.P.(C). No. 1389/2005 and petitioner in W.P.(C). No. 4668/2005, was an Assistant Store Keeper with the Delhi Transport Corporation which is petitioner in W.P.(C). No. 1389/2005 and respondent in W.P.(C). No. 4668/2005 (hereinafter referred to as the `management'). The workman was served with a charge-sheet on 21.8.1985 which alleged, (i) that the workman had not made an entry in respect of 12,000 liters of diesel received; (ii) on 14.8.2005 at around 1015 hours a diesel tanker arrived at the depot and when the diesel was being filled in the main tank of the depot, diesel overflowed and 150 liters of diesel spilled on the ground causing financial loss to the management, this happened due to non-adherence of the procedure laid down for receipt and issue of diesel as mentioned in Section 4 of the Engineering Order No. 6 of 1974; (iii) that when the Depot Manager along with AE and AAO visited the diesel tank shed the workman was found missing from the place of duty.

b) An inquiry was initiated and the Inquiry Officer found the charges leveled in the charge-sheet as proved and submitted his report on 6.10.1987.

c) On 9.11.1987 the disciplinary authority issued a notice to show cause along with a copy of the findings of the inquiry. The workman replied to show cause notice. The workman thereafter was removed from service by an order of the management dated 12.1.1988.

d) The workman raised an industrial dispute which was referred to the Labour Court vide an reference Notification No. F.24 (412)/89-Lab./5137-42 dated 8.2.1989 with the following terms, "Whether the dismissal of Sh. Ashok Kumar from service is illegal and/or unjustified and if so, to what relief, is he entitled and what direction are necessary in this respect?".

2. The Labour Court framed a preliminary issue in respect of the inquiry and found that the inquiry conducted against the workman was fair and proper as per the principles of natural justice. The Labour Court, however, directed the workman to be reinstated with 50% back wages.

3. The workman in his writ petition claims that he should have been reinstated with full back wages. On the other hand, the management in its writ petition claims that the Labour Court should not have set aside the order of punishment and the award of reinstatement with 50% back wages is liable to be quashed.

4. Before proceeding further it will be appropriate to summarize the views of the Labour Court on the quantum of punishment. The workman pleaded before the Labour Court that punishment of removal from service was highly disproportionate to the gravity of misconduct proved against him as the charges against the workman as well as Shri Gulshan Rai were the same and while the management removed the workman from service, the only punishment given to Shri Gulshan Rai was censure. As against this the management submitted that the punishment of removal of service was justified and proportionate to the gravity of the misconduct. The Labour Court observed that Shri Gulshan Rai, Store Keeper had also been separately charge-sheeted in respect of the same allegations but he had been given a minor punishment of censure and expressed the view that the punishment of removal imposed upon the workman Ashok Kumar was highly disproportionate, arbitrary and discriminatory as Sh. Gulshan Kumar was given only a minor punishment as against the punishment of removal imposed on the workman. The Labour Court went on to say that in the facts and circumstances of the case, stoppage of three or four increments or some other minor punishment would have been appropriate and justified. The Labour Court then exercised the power under Section 11A of the Industrial Disputes Act, 1947 and set aside the order of dismissal. It ordered reinstatement of the workman Ashok Kumar with 50% back wages. The relevant portion of the award is extracted below:

I am of the view that the punishment of removal from service imposed upon workman Ashok Kumar by the Management is highly disproportionate, arbitrary and discriminatory, because Gulshan Rai, Store Keeper was given a minor punishment of censure by the management for the same allegations. In the facts and circumstances of the case, stoppage of 3 or 4 increments or some other minor punishment would have been appropriate and justified. Accordingly, in exercise of the Powers conferred by Section 11A of I.D. Act, I set aside the Order of Dismissal dated 13.1.88 of the workman Ashok Kumar as illegal and unjustified and direct the Management to reinstate the workman Ashok Kumar in service with 50% (fifty per cent) back wages and continuity in service. Hence, this Award is passed.

5. The view of the Labour Court is self-contradictory. If the Labour Court had found the offence of Gulshan Rai as also the workman Ashok Kumar to have been same, it should have opined that Ashok Kumar be also let-off with the punishment of censure. Instead the Labour Court opined that the stoppage of 3 or 4 increments would have been justified. Obviously the involvement of Gulshan Rai and that the workman Ashok Kumar in the misconduct were different. Secondly while the Labour Court held that stoppage of 3 or 4 increments would have been justified it ordered for reinstatement without actually imposing any punishment. The Labour Court not only omitted to impose any punishment but also did not leave any scope for the management to substitute a punishment for the punishment of dismissal. Thirdly although the workman was reinstated on account of exercise of power under Section 11A of I.D. Act despite a finding of misconduct, the Labour Court directed reinstatement with 50% back wages. The period for which back wages are required to be paid by virtue of this award was between the date of removal (13.1.1988) and the date of the award (7.5.2003), i.e., for more than five years. The management was not at fault for keeping the workman out and yet the workman was awarded 50% back wages. As such the award came as a punishment to the management and not as a punishment to the guilty workman.

6. In order to examine whether the Labour Court has passed an appropriate order under Section 11A of the Act, the section is extracted below:

11A. Powers of Labour Court, Tribunals and National Tribunals to give appropriate relief in case of discharge of dismissal of workman.- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for 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 re-instatement 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 only on the materials on record and shall not take any fresh evidence in relation to the matter.

7. The section clearly stipulates that the Labour Court can set aside the order of discharge or dismissal if the same is not justified. At the same time it stipulates that it can order reinstatement of the workman on such terms and conditions as it thinks fit or give such relief including an award of lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. The Labour Court, therefore, must first come to a finding that the order of removal was not justified. Thereafter the Labour Court has to decide whether the workman has to be reinstated and thirdly if the workman is to be reinstated what should be the terms and conditions or such other relief in the form of lesser punishment in lieu of discharge as the circumstances of the case may require. Now the Labour Court has found that the workman was guilty of misconduct. Then in order to find that the discharge was not justified the Labour Court has compared the case of workman Ashok Kumar with the case of another employee Gulshan Rai. The Labour Court has not weighed the punishment against the misconduct. It has not even considered the loss of diesel and also the inconvenience caused by over-flow of 150 liters of diesel. The Labour Court has not taken note of the fact that the workman had not made the necessary entries in the books which caused a mistake about the unfilled capacity in the management's container/tank. The Labour Court also did not take note of the misconduct of the workman being absent at the time of inspection by senior officers. The Labour Court thus made the basic mistake in assessing the justifiability of the order of removal. Instead the Labour Court went on to compare the case of Gulshan Rai and that of workman Ashok Kumar. Here the Labour Court did not even invoke the principles of equality by comparing the misconduct of Gulshan Rai and that of Ashok Kumar. The Labour Court has made no reference to the charge-sheet given to Gulshan Rai and has made no effort to see if the charges were the same. The management disputes that the charges were the same. According to the management the charges against Gulshan Rai were minor and accordingly the minor penalty of censure was imposed on him. Thus, even invoking the principles of equality, the award of setting aside of the punishment of discharge can hardly be upheld.

8. As mentioned earlier the Labour Court has not cared to substitute the punishment of removal from service with some lesser punishment. The circumstances require that the workman who was found guilty of misconduct was visited with some penalty. The Labour Court entirely omitted to do that. Although it gave an opinion that it would have been proper to stop three or four increments or some other minor punishment, it did not actually proceed to impose any such punishment. Nor did it leave the management with an option to impose an alternative punishment. The management has not actually imposed any other punishment after the award. The management has rightly not given any other punishment because the award as read does not actually give any liberty to impose any alternative punishment.

9. Coming to back wages, the principles governing the same are only the alternative employment, if any, in which the workman may have been engaged. In case the workman had an alternative income during the period between his removal and his reinstatement he is not entitled to any back wages. Further back wages are awarded only when he is kept out of the employment by the fault of the management and further if the workman has not been able to find an alternative employment. The Labour Court in the present case has not at all considered whether the workman had earned any income during the period of 13.1.1988 and 17.5.2003.

10. Much water has flown under the bridge after the Labour Court passed the impugned award. The management has by now reinstated the workman and nothing has been brought to the notice of this Court that after his reinstatement he has been found deficient in performance of his duties. The management, however, has not paid the 50% back wages. The operation of the impugned award to the extent of back wages was stayed by an order of this Court on 28.1.2005. It will be unjust at this point of time to direct the management to throw the workman out of employment in pursuance to an order in these writ petitions. Nor will it be fair to ask the management to pay 50% back wages to the workman because the management had actually passed an order of removal which was not unjustified and, therefore, was not responsible for loss of income, if any, to the workman during the interregnum period. The management while imposing the penalty of removal had also taken into consideration the past record of the workman. It showed that in the past also the workman had been visited with disciplinary actions. It will be unjust to burden the management with any part of the back wages to be paid to the workman.

11. Finally I come to the question of alternative punishment which could be imposed under Section 11A of the Industrial Disputes Act. The Labour Court can be asked to now exercise its jurisdiction under Section 11A of the Industrial Disputes Act by imposing an alternative punishment but that will only cause further delay. It equally looks unfair at this distant point of time to impose any further penalty on the workman. The main purpose of imposing a penalty is reform. It can be fairly presumed that having gone through the long process of domestic inquiry and industrial dispute followed by the present litigation in the High Court, the workman has learnt his lessons well and has understood the importance of being diligent in his work. Further he may have remained unemployed for some part of the interregnum period and has suffered some loss of income. This can be viewed as a kind of punishment as was done by the High Court of Allahabad in Ram Prasad v. CAT (Allahabad) and Ors. 2003 (96) FLR 306. In this situation it will not be proper to impose any further penalty on the workman.

12. The two writ petitions are accordingly disposed of with the directions that the workman would be reinstated as directed by the Labour Court but would not be entitled to any back wages. The management will be left with the option to recover the cost of 150 liters of diesel that spilled on 14.8.1985 on account of the negligence of the workman.