Limited vs Sh. Rakesh Kumar & Others
2024 Latest Caselaw 351 HP

Himachal Pradesh High Court

Limited vs Sh. Rakesh Kumar & Others on 5 January, 2024

Author: Ajay Mohan Goel

Bench: Ajay Mohan Goel

                                                                           .
         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA





                                             CWP No.1646 of 2016 a/w
                                             COPC No.109 of 2023
                                             Decided on: 05.01.2024





    CWP No.1646 of 2016
    M/s Su­Kam Power System




                                                of
    Limited                                          ...Petitioner.
                    Versus
    Sh. Rakesh Kumar & others                        ... Respondents.
    CWP No.109 of 2023
                     rt
    Court on its own motion.                         ...Petitioner.
                      Versus

    Raj Kumar Ralhan                                 ... Contemnor/Respondent.

    Coram
    Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
    Whether approved for reporting? Yes



    CWP No.1646 of 2016
    For the petitioner:    Mr. Rahul Mahajan, Advocate.
    For the respondent:    Ms. Nishi Goel, Advocate.




    COPC No.109 of 2023





    For the petitioner:             Court on its own motion.
    For the respondent:             Nemo.





    Ajay Mohan Goel, Judge (Oral)

By way of this petition, the petitioner has, inter alia,

prayed for the following relief:­

"a) To modify the Award dated 9.11.2015 passed in reference No.75 of 2009 titled as Rakesh Kumar & others vs. Managing Director, M/s Su­kam Power System Limited by setting aside the findings on issue Nos.3, 4 and 5­A."

2. Brief facts necessarily for the adjudication of present

petition are that on a dispute raised by the workmen, the following Whether reporters of the local papers may be allowed to see the judgment?

.

Reference was made by the appropriate Government for the

adjudication of learned Industrial Tribunal­cum­Labour Court,

Shimla, H.P. (hereinafter to be referred as 'learned Tribunal')"

"1."Whether the transfer of S/Shri Sanjeev Kumar, Rajeev Kumar, Sanjay Thakur, Sunil Kumar & Rakesh

of Kumar to different branches of M/s Su­kam Power Systems Limited at Gurgaon, Delhi, Jaipur and suspension rt of Shri Rajesh Kumar and thereafter dismissal of workmen S/Shri Sanjeev Kumar, Rajeev

Kumar, Sanjay Thakur, Sunil Kumar & Rakesh Kumar from service on 30.04.2009 along­with suspended workman Shri Rajesh Kumar on the ground of major

misconduct by the management, as alleged by the management of M/s Su­kam Power System Ltd., 64 71 DIC Industrial Area baddi, Tehsil Nalagarh, District

Solan HP, is legal and justified? If not, what relief and

consequential service benefits above workmen are entitled to?"

2. "Whether strike resorted by the workmen of M/s Su­ kam Power System Ltd., 64, 71 DIC Industrial Area Baddi, Tehsil Nalagarh, District Solan, H.P. w.e.f. 28.7.2009 against the transfer/ suspension and further dismissal of S/Shri Sanjeev Kumar, Rajeev Kumar, Sanjay Thakur, Sunil Kumar, Rakesh Kumar & Rajesh Kumar is legal or illegal and its effect?"

3. Pursuant to the Reference being so made, the parties

put forth their respective claims before the learned Tribunal and on

the basis of their claims, the following issues were framed:­

"1. Whether the transfer of petitioners S/Shri Sanjeev

.

Kumar, Rajiv Kumar, Sanjay Thakur, Sunil Kumar &

Rakesh Kumar to different branches of respondent company was illegal and unjustified as alleged? OPP

2. Whether petitioner Rajesh Kumar was put under suspension in an illegal and unjustified manner as alleged? OPP.

of

3. Whether the petitioners S/Shri Sanjeev Kumar, Rajiv Kumar, Sanjay Thakur, Sunil Kumar, Rakesh Kumar along­with suspended workman Shri Rajesh Kumar were rt dismissed on the ground of major misconduct by the

respondent in illegal and unjustified manner as alleged? OPP.

4. To what relief, the petitioners are entitled to if all or

any of the above issues stand proved? OPP.

5. Whether the strike resorted by the workmen of respondent company against the transfer/ suspension

and further dismissal of petitioners S/Shri Sanjeev

Kumar, Rajiv Kumar, Sanjay Thakur, Sunil Kumar, Rakesh Kumar and Rajesh Kumar was legal as alleged?

If so, its effect? OPP.

5­A Whether the respondent is entitled to lead evidence on merits before this Court to prove the misconduct of the petitioners in case their dismissal is found to be in violation of the principles of natural justice? OPR.

6. Relief."

4. On the basis of the evidence led by the parties in

support of their respective contentions, the issues were decided as

under:­

"Issue no.1 No. Issue no.2 No.

.

                Issue no.3         Yes.





                Issue no.4         Entitled to lump sum compensation.
                Issue no.5         No.





                Issue no.5­A       Yes.
                Relief.            Reference partly allowed in favour of
                                   petitioners per operative part of




                                     of
                                   award."

5. Learned counsel for the petitioner has submitted that rt the issues which have been decided in favour of the workmen and

against the present petitioner by the learned Tribunal are erroneous

being contrary to the pleadings as well as evidence on record. He

submitted that learned Tribunal erred in coming to the conclusion

that the dismissal of the workmen was illegal or unjustified and

further they were entitled for reinstatement, to compensate which,

lump­sum compensation stands granted in their favour.

Accordingly, he prayed that as the award passed by the learned

Tribunal is not sustainable in the eyes of law the present petition be

allowed by modifying the award qua the issues which have been

decided by the learned Tribunal against the present petitioner.

6. Learned counsel for the respondents on the other hand

has submitted that there is neither any infirmity nor perversity in

the findings returned by the learned Tribunal. While drawing the

attention of the Court to the findings which have been returned qua

issues No.3 and 4 he submitted that all these findings are clearly

borne out from the record of the case and therefore as there is

neither any misreading on the part of the learned Tribunal nor the

.

findings returned are contrary to the material on record, this petition

is without any merit and the same be dismissed. Learned counsel

further submitted that otherwise also in exercise of its power of

judicial review this Court is not to act as an Appellate Court which

in fact is intended by the petitioner. She has relied upon the

of judgment of the Hon'ble Supreme Court Bhuvnesh Kumar Dwivedi

vs. Hindalco Industries Limited, (2014) 11 Supreme Court Cases 85.

rt

7. I have heard learned counsel for the parties and have

also carefully gone through the award passed by the learned

Tribunal.

8. A perusal of the award in issue demonstrates that while

deciding issue No.2 in favour of the workmen, learned Tribunal after

referring to respective contentions of the parties, took into

consideration the relevant clauses of the certified standing orders,

i.e. Clause 31.1 to 31.5 and thereafter held that as admittedly

neither any Show Cause Notice nor any Charge Sheet was issued to

the petitioner before terminating his services, the same was bad in

law. Learned Tribunal also held that no explanation was called from

the petitioner and no domestic inquiry was conducted to ascertain

the charges and principles of natural justices were violated while

passing the impugned order.

9. During the course of the arguments, learned counsel for

the petitioner could not demonstrate that the findings so returned by

the learned Tribunal were perverse and not borne out from the

.

record of the case. Therefore, as it stands fortified from the record

that the termination of service of the workmen was without issuance

of a Show Cause Notice and Charge Sheet as was the requirement of

certified standing order which governed the service conditions of the

workmen, this Court is of the considered view that the award passed

of by the learned Labour Court qua issue No.3 does not calls for any

interference. rt

10. Hon'ble Supreme Court in Bhuvnesh Kumar Dwivedi vs.

Hindalco Industries Limited, 2014 (11) Supreme Court Cases 85, after

referring to its earlier judgments has held that the High Court can

interfere with an Order of the Industrial Tribunal only on the

procedural level and in cases, where the decision of the lower Court

has been arrived at in gross violation of the legal principles. The

High Court shall interfere with factual aspect placed before the

Labour Courts only when it is convinced that the Labour Court has

made patent mistakes in admitting evidence illegally or made grave

errors in law in coming to the conclusion of facts. The High Court

granting contrary relief under Articles 226 and 227 of the

Constitution of India amount to exceeding its jurisdiction conferred

upon it.

11. As far as issue No.4 is concerned, this Court is of the

considered view that the compensation that has been awarded by

the learned Labour Court in lieu of reinstatement cannot be said to

be on the higher side. The workmen had served the petitioner­

.

Company from the year 2005 onwards till their services were illegally

terminated in the year 2009.

12. In this view of the matter, the compensation that has

been granted at the rate of Rs.3,00,000/­ is fair and just. At this

stage, learned counsel for the petitioner submits that at least the

of interest part that has been awarded by the learned Tribunal be

waived of as the financial position of the companies are not all that rt good. The request so made appears to be genuine.

13. Accordingly, this petition is disposed of without

otherwise interfering with the award passed the learned Tribunal

except to the extent that the workmen shall not be entitled to the

interest as was awarded to them by the learned Tribunal. Pending

miscellaneous applications, if any, also stand disposed of.

CMP No.18155 of 2022 in CWP No.1646 of 2016

14. By way of this application filed under Section 151 of

the Code of Civil Procedure, a prayer has been made by

applicants/ for release of amount.

15. Having heard learned counsel for the parties, this

application is allowed and balance amount falling to the share of

applicant, in terms of the judgment passed by this Court.

alongwith up­to­date interest, is directed to be released in their

favour. The amount be remitted directly into the bank account as

per particulars annexed with the application. Application stands

disposed of.

.

16. Since the main case stands disposed of, accordingly,

present proceedings are ordered to be closed. Notice, if any,

issued, stands discharged.

(Ajay Mohan Goel)

of Judge January 05, 2024 (Rishi) rt