Rati Ram S/O Mangi Ram vs The Management Of Itdc
2007 Latest Caselaw 1201 Del

JUDGMENT

Kailash Gambhir, J.

1. By way of this writ petition the petitioner seeks to challenge two orders i.e. order dated 3.10.2003 passed by the Assistant Labour Officer under Section 33C(1) of the Industrial Disputes Act and order dated 19.2.2003 passed by the Disciplinary Authority whereby the punishment of dismissal was awarded to the petitioner.

2. The brief facts necessary for disposal of the present case are that the petitioner who was working on the post of peon was placed under suspension on 4.9.79 on the ground of misconduct committed by him upon his taking out eight bottles of belentine scotch whiskey from Duty Free Shop and then hiding them in the dicky of his motorcycle with a view to take them out of the airport for the purposes of selling them outside. The petitioner was arrested by the police along with one co-worker P.V. Bharthan. The petitioner was also prosecuted in the court of Additional Chief Metropolitan Magistrate for the offences punishable under Section 61 & 69 of the Punjab Excise Act read with Section 467/471 of IPC. Departmental Enquiry against the petitioner as well as P.V. Bharthan was initiated and vide order dated 10.12.80, Disciplinary Authority awarded the punishment of dismissal from the service against the petitioner. However, the petitioner was acquitted in the criminal case vide order dated 29.4.86. The petitioner workman assailed the said order of dismissal and the Labour Court vide award dated 27.8.2002 had set aside the penalty of dismissal on the ground of biasness of the Disciplinary Authority. It would be relevant to reproduce the operative part of the said order as under:

Keeping in view the reasons and discussions hereinabove, I am of the view that it would be appropriate in the interest of justice, if the penalty of dismissal of service of workman imposed by the management is set aside and directions is passed for reconsideration of the penalty on the workman keeping in view the entire facts and circumstances of the present case.

3. Pursuant to the said order the respondent reconstituted the Disciplinary Authority and vide order dated 19.2.2003, Mr. R.C. Gupta who was appointed as Competent Disciplinary Authority had also upheld the earlier decision of the Disciplinary Authority. Aggrieved with the order dated 19.2.2003, the petitioner has filed the present writ petition. The petitioner has also impugned order dated 3.10.2003 passed by the Assistant Labour Commissioner, whereby the Assistant Labour Commissioner declined to pass an order under Section 33C(1) for the recovery of the entire back wages from the date of the dismissal till the date of filing of the application before the Assistant Labour Commissioner.

4. I have heard learned Counsel for the parties. The contention of Mr. Bajpai counsel for the petitioner is that the order of dismissal was set aside by judicial order and therefore, the Disciplinary Authority exercising powers on the administrative side could not have passed the same order of dismissal. The thrust of the argument of the counsel for the petitioner is that judicial finding could not have been set aside by the Administrative Authority.

5. I do not find any force in the argument of counsel for the petitioner. The earlier order dated 10.12.80 passed by Disciplinary Authority was set aside by the tribunal only on the limited ground of biasness of the Disciplinary Authority against the petitioner workman. Disciplinary Authority was reconstituted and the said Disciplinary Authority passed the impugned order pursuant to the directions given by the tribunal to the respondent management for constituting another Disciplinary Authority to award appropriate punishment after reconsidering the entire case. The contention of the counsel for the petitioner, if accepted, will amount to reading the order of the Tribunal in a manner as if the Tribunal had restricted the right of the Disciplinary Authority to the extent of passing any order, other than that of dismissal. Perusal of the order of the Tribunal clearly shows that no such fetters have been placed on the right of the Disciplinary Authority. I, therefore, do not find any merit in the submission of the counsel for the petitioner.

6. The other argument of the counsel for the petitioner is that the Disciplinary Authority exercising administrative powers could not have overruled the orders of the Tribunal. The Disciplinary authority has not overstepped its jurisdiction as it was within its domain and power to award any punishment against the delinquent and the said power also includes the power to award the punishment of dismissal as well. The reconstitution of the Disciplinary Authority in the present case was also pursuant to the directions given by the Tribunal and, therefore, also it cannot be said that the Disciplinary Authority in any manner has exceeded its jurisdiction by awarding the punishment of dismissal against the petitioner.

7. The next ground of challenge is with regard to the order passed by the Assistant Labour Officer whereby the petitioner was declined issuance of the recovery certificate for the recovery of backwages. The contention of the counsel for the petitioner is that the order passed by the Assistant Labour Officer is illegal and arbitrary as after the setting aside of his dismissal order dated 10.12.1980 by the Tribunal vide award dated 27th August, 2002 the petitioner became entitled to grant of backwages at least from the date of his dismissal from the service i.e. 10.12.80 till the date of passing of the subsequent dismissal order dated 19th June, 2003. On the other hand, counsel for the respondent contended that the punishment order dated 10.12.1980 was set aside only on the limited ground of biasness and no infirmity was found by the Tribunal in the enquiry report which clearly inducted the petitioner for his said gross misconduct. Counsel for the respondent also contended that even against the co-worker Shri P.V. Bharthan the punishment of dismissal was awarded and, therefore, the petitioner could not have been given any better treatment than that of his co-worker Shri P.V. Bharthan. It is true that in the Award dated 27th August, 2002 no specific directions have been given by the Tribunal for the grant of backwages, although as per the terms of the reference the Tribunal ought to have given his finding to the grant of further reliefs after the order of the termination against the petitioner was found to be illegal by the Tribunal on the ground of biasness. It is also true that Section 33C(1) is in the nature of execution of any money which is due to the workman from the employer either under a settlement or an award and the appropriate Government shall issue the recovery certificate after it is satisfied that the money claimed by the workman is so due from the employer. The service of the petitioner was terminated in the present case way back in 10.12.1980 and the Tribunal has passed the Award vide order dated 27th August, 2002 setting aside the order of termination passed by the Disciplinary Authority. Once the Tribunal has set aside the punishment order then in such circumstances the Tribunal ought to have given some directions with regard to the entitlement/disentitlement of the petitioner to the grant of backwages. Normally this Court would not have given any directions for the grant of backwages in a case where the Tribunal has not given any specific directions in this regard pursuant to the adjudication of an industrial dispute between workman and the employer on a reference made under Section 10 of the Industrial Disputes Act. However, to balance the equities and with a view to avoid fostering another round of litigation, I deem it fit to award 50% backwages to the petitioner with effect from 10th December, 1980 till 18.2.2003 on the last salary which was being drawn by him. The grant of this relief is in the interest of equity, fair play and justice and in view of the peculiar facts and circumstances of the present case in the exercise of extra ordinary and equitable jurisdiction under Article 226 of the Constitution of India.

8. With these directions, writ petition stands disposed of.