Jharkhand High Court
(A) Sajda Kaneez Wife Of Late Badre Alam vs M/S Tisco Limited; Tube Division on 21 November, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 7795 of 2012
1. (a) Sajda Kaneez wife of late Badre Alam, aged about 56 years;
(b) Md. Amir Jameel son of late Badre Alam, aged about 28 years;
Both resident of House No.19, Cross Road - 10, Line Zakir Nagar
East, P.O. Azad Nagar, Jamshedpur, P.S. Mango, District - East
Singhbhum ... ... Petitioners
Versus
M/s Tisco Limited; Tube Division, at & P.O. Jamshedpur, P.S.
Jamshedpur, District East Singhbhum... ... Respondent
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioners : Mr. Sarju Prasad, Advocate
: Mr. Altaf Hussain, Advocate
: Mr. Afaque Ahmed, Advocate
: Mr. Atmaram Choudhary, Advocate
: Ms. Neelam Kumari, Advocate
For the Respondent : Mr. G.M. Mishra, Advocate
: Mr. Manish Mishra, Advocate
---
16/21.11.2024 Heard the learned counsels appearing on behalf of the parties.
Mr. G.M. Mishra, Advocate has appeared online and Mr. Manish
Mishra, Advocate, has also assisted this Court on behalf of the
respondent.
2. This writ petition has been filed challenging the award dated
22.10.2011 passed by learned Presiding Officer, Labour Court,
Jamshedpur in Reference Case No.11 of 1997 whereby the learned
court has held that the reference was not maintainable and has also
decided the case on merit that the termination of service of the
concerned workman Sri B. Alam by the management of M/s Tisco
Tube Division was proper and the workman was not entitled for any
relief.
Arguments of the petitioners.
3. The learned counsel appearing on behalf of the petitioners,
while assailing the impugned award, has submitted that the finding of
the learned court that the reference itself was not maintainable, is
perverse inasmuch as once the dispute is referred to the labour court
for adjudication, the learned labour court has no option, but to answer
the reference. The learned counsel submits that the detail discussion
with regard to the maintainability of reference is from paragraph 7
wherein the case of respective parties has been recorded. He has
submitted that at the time of making reference, the existence of
industrial dispute is required to be examined and the reference having
been made, there cannot be any doubt that the industrial dispute was
existing, but the learned court has held that the dispute itself was a
stale one. He submits that the finding of the learned labour court that
the reference itself was not maintainable is beyond the jurisdiction
conferred upon the learned labour court, and is consequently perverse
which calls for interference. The learned counsel has relied upon the
judgment passed by Hon'ble Supreme Court reported in (2010) 14
SCC 176 (Kuldeep Singh Vs. General Manager, Instrument Design
Development and Facilities Centre and another).
4. The learned counsel has further submitted that the domestic
inquiry was held to be fair and proper, but the inquiry officer, was an
outsider which is not permissible under the standing order governing
the petitioner. The learned counsel has further submitted that even the
second show cause notice was not given to the petitioners, and
therefore, the inquiry could not have been held to be fair and proper.
5. The inquiry was held to be fair and proper vide order dated
10.08.2011. He has placed the entire order and during the course of
argument, it transpired that neither the objection with regard to the
appointment of the inquiry officer was taken nor any plea was raised
in connection with non-issuance of second show cause notice.
6. During the course of argument, the learned counsel for the
petitioners has submitted that though no such a plea with regard to
issuance of second show cause was raised before the learned labour
court, but he has raised this plea in the writ petition and he submits
that such a plea being a pure question of law can be considered. He
has submitted that issuance of second show cause is an important step
in the matter of domestic inquiry and second show cause having not
been issued, the entire inquiry proceeding is vitiated, and therefore,
the inquiry proceeding could not be held to be fair and proper.
7. So far as the merit of the case is concerned, the learned counsel
has submitted that a specific plea was taken before the learned labour
court in paragraph 23 of the written statement that one Sitakant
Pandey, was also charge sheeted for same and similar charges as that
of the concerned workman involved in this case and that he was held
guilty by the inquiry officer but was taken back in service after
awarding punishment of suspension of 15 days. Another person
namely Sitaram Sahu was also proceeded against on the same and
similar charges but no action was taken against him. Other workmen
namely Roop Narayan Jha, Umapati Sethi, Abhimanyu Singh,
Chakradhar Shah, Sri Pathak, Sri Ojha, Kameshwar Sharma were also
proceeded against and dismissed from service but termination of all
the persons have been held to be improper and unjustified and the
relief of reinstatement was granted to them. The learned counsel
submits that the case of the petitioner was identically placed but the
petitioner has been differently treated and has been discriminated.
8. The learned counsel has relied upon a judgment passed by this
Court in LPA No.78 of 1990 (R) (Tata Iron and Steel Company Ltd.
Vs. The Presiding Officer, Jamshedpur & Ors.), which involved
three workmen and submitted that this Court ultimately decided the
case in favour of the concerned workmen.
9. During the course of argument and upon a specific query made
by this Court, the learned counsel for the petitioners has fairly
submitted that the charge sheets, the order of punishment etc. in
connection with the persons, whose names have been mentioned in
paragraph 23 of the written statement filed by the workman before the
learned court, were not exhibited before the learned court.
Arguments of the Respondent.
10. The learned counsel appearing on behalf of the respondent,
while opposing the prayer, has submitted that there is no perversity in
the impugned award calling for any interference. He has also
submitted that the domestic inquiry was held to be fair and proper by a
reasoned order. The petitioner has not specifically challenged the
order by which the domestic inquiry was held to be fair and proper.
He has submitted that the objection with regard to the appointment of
the inquiry officer was never raised before the domestic inquiry and
rather the concerned workman had fully participated in the domestic
inquiry and cross-examined the witnesses also. He has also submitted
that before the learned labour court, no point with regard to issuance
of second show cause was raised. The issuance of second show cause
is itself a question of fact and such a plea cannot be permitted to be
raised for the first time in the writ proceedings.
11. During the course of hearing, it transpired that though no
specific challenge has been made by the petitioner with respect to the
order by which the domestic inquiry was held to be fair and proper but
in the prayer portion of the writ petition itself it has been stated that
the inquiry was unfair and not proper.
12. The learned counsel has also relied upon the judgment passed
by Hon'ble Supreme Court reported in (2006) 6 SCC 325 (Amrit
Vanaspati Co. Ltd. Vs. Khem Chand and Anr.) paragraph 8 to submit
that once the inquiry is held to be fair and proper, the matter has to be
examined within the contours of Section 11A of Industrial Dispute
Act and in the present case, the needful has been done by the learned
court. He has also submitted that considering the nature of allegation
which stood proved against the workman, the workman was not
entitled for reinstatement and the plea of the workman that he was
subjective to victimization, has also been rejected by the learned court.
13. He has also submitted that the workman participated in an
illegal strike causing hindrance in discharge of work and stood at the
platform of pilger mill and forcibly stopped the pilger mill operators
from performing their duties, and therefore, it is submitted that the
concerned workman does not deserve any sympathetic view. It has
been submitted with regard to the comparison with other workmen
that there was no material before the court to enable such a
comparison. Moreover, the judgment passed in the case of certain
workmen referred to in LPA No. 78 of 1990 (R) stand on a different
footing, as the charges in that case were not proved, and the domestic
inquiry was held to be unfair.
14. In response, the learned counsel for the petitioners has
submitted that even if the charge is said to be proved, the punishment
is highly disproportionate to the charges levelled, and for this, he has
relied upon a judgment passed by Hon'ble Supreme Court reported in
(1998) 9 SCC 666 (Ram Autar Singh Vs. State Public Service
Tribunal and Ors.) wherein the police officer remained absent for one
day on account of hunger strike for opposing his transfer and
ultimately the Hon'ble Supreme Court reinstated the concerned police
officer with continuity of service and all consequential reliefs and
50% back-wages. The learned counsel submits that the quantum of
punishment has not been properly considered by the learned labour
court while considering the matter and accordingly the punishment
imposed calls for modification.
15. Arguments concluded.
16. Post this case tomorrow i.e. on 22.11.2024 for further dictation.
(Anubha Rawat Choudhary, J.)
Saurav/-
