Vanaspati Co. Ltd. Vs. Khem Chand & Anr  Insc 400 (12 July 2006)
Ar. Lakshmanan & Lokeshwar Singh Panta Dr. Ar. Lakshmanan, J.
appeal is directed against the final judgment and order dated 9.10.2003 passed
by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition
no.8594 of 1990, by which the High Court allowed the writ petition filed by the
respondent no.1 and directed the appellant Management to pay to the respondent
no.1 herein back wages to the extent of 75% till the date of superannuation or
till the date of closure of the unit along with closure compensation and other
admissible benefits. The appellant is the employer of respondent no.1 herein.
He was appointed as a fitter with the appellant in its factory on 1.6.1956. The
following charge-sheet dated 22.1.1976 was issued to the respondent no.1. "Charge
Sheet for misconducts.
following charges are framed against you:-
That on 22.1.76
you were on duty in the shift from 12 night to 8 a.m. At about 4.30 a.m you unauthorisedly
left your place of work and leaving your department you came to the boiler.
That at that
moment when you reached at the boiler you shouted loudly Ramphal you throw both
the new coolie into boiler. We would stop the work. As such, you threatened
other workers and incited them to stop work.
That when you
were uttering the aforesaid words loudly, Shri Devraj Batura, Shift Chemist
also came there. Shift Chemist in a very humble manner told you that you should
go to your department and should not speak like that. Whereupon, you told him
in anger - tomorrow I would also throw you in the boiler. After saying this,
you returned to your department and while going, beckoned at Shri Ram Phal,
aforesaid acts amount to gross misconduct under the standing orders and in all
are directed to submit reply within 24 hours of receipt of this letter as to
why disciplinary action should not be taken against you. If your reply is not
received within prescribed time, it will be presumed that you accept the
charges and appropriate action would be taken.
charges framed against you are of serious nature, hence you are placed under
suspension during the course of enquiry. During the period of suspension , you
are required to come for attendance on all the working days at 11 a.m. so that the correspondence could be made. If you
change your residence during suspension period, you immediately inform the same
to us. Please note that in case of violation of orders regarding attendance and
residence, no subsistence allowance would be payable to you.
Vanaspati Company Ltd.
Factory Manager." The respondent sent reply to the charges made against
explanation of the respondent was found unsatisfactory and an inquiry into the
matter was ordered by the appellant. An Inquiry Officer was also appointed. The
Inquiry Officer concluded the inquiry and submitted the Inquiry report. The
Inquiry Officer found all the charges against the respondent proved and held
him guilty of the act of misconduct. Based on the inquiry report, the services
of the respondent no.1 herein were dismissed by the Disciplinary Authority.
the order of dismissal, respondent no.1 raised an industrial dispute as the
conciliation proceedings between the parties failed. The respondent no.2 vide
notification of date referred the dispute of termination of the services of the
employment of respondent no.1 to respondent no.3 herein. To add the charge of
strike against respondent no.1, an application was also moved by the appellant
Management, buit the same was dismissed by the Labour Court. The Labour
Court passed an order
holding that the domestic inquiry against respondent no.1 was not free and
fair. The Labour Court was of the view that the evidence
of the witnesses was not examined in isolation and when the examination of one
of the witnesses was being conducted other witnesses were also present. It was,
therefore, held that the domestic inquiry was held in violation of principles of
same very order, the Labour
Court allowed the
prayer of the management and permitted it to lead additional evidence for
proving charges against respondent no.1 under the provisions of Section 11A of
the U.P. Industrial Disputes Act, 1947.
this order of the Labour
Court, the respondent
no.1 filed writ petition before the High Court, which was dismissed. The
appellant-management, thereafter, produced certain other witnesses to prove its
case against respondent no.1. It is seen from the record that the deposition of
the witnesses duly corroborated the case of the appellant in all respects. All
the appellant's witnesses were cross- examined by the respondent no.1. The
respondent no.1 got himself examined in support of his case.
7.12.1989, the Labour
Court passed the
award holding that the charges against respondent no.1 were found proved in the
proceedings before the Labour
Court and the order
dismissing him from the service was upheld. The respondent no.1 filed a writ
petition before the High Court aggrieved by the award dated 7.12.1989. The
Management filed its counter affidavit to the writ petition. The rejoinder
affidavit was also filed by the Management. The High Court by its order dated
9.10.2003 allowed the writ petition filed by the respondent no.1 herein and
directed the Management to pay to the respondent no.1 back wages to the extent
of 75% till the date of superannuation or till the date of closure of the unit
along with closure compensation and other admissible benefits. The Management
was directed to deposit the amount as aforesaid within a period of three months
from the said date.
against the said order passed by the High Court, the appellant-Management has
filed the instant special leave petition, in which leave was granted by this
Court on 8.10.2004.
heard Mr. Raj Birbal, learned Senior Counsel for the appellant and Mr. S. Borthakur,
learned counsel for respondent no.1.
learned senior counsel invited our attention to the relevant portion of the
pleadings and of the two orders passed by the Labour Court and the order passed by the High Court, which is impugned
in this matter.
learned senior counsel submits that the High Court was wrong in holding that
the charges levelled against the respondent no.1 were not so grave as to entail
a punishment of dismissal from service of respondent no.1, and the High Court
has failed to appreciate that serious charges of threatening to kill senior
officers of the appellant unit like Chemist and other co-workman willing to
work by throwing them in the boiler and obstructing the work in the factory
were levelled against respondent no.1. These serious charges of riotous nature,
when there was a strike in the factory, were found proved against respondent
no.1 by the Labour Court and such serious and grave charges of misconduct found
proved against respondent no.1, if left unpunished or punished with a lesser
punishment would have led to indiscipline in the factory and would have clearly
been detrimental to the industrial peace of the appellant's unit. Under these
circumstances, learned senior counsel submits, viewing the gravity of the
charges levelled against respondent no.1, the High Court fell in error in
holding that the charges against respondent no.1 were not of such a nature as
to entail punishment of dismissal from service.
contra, Mr. Borthakur, learned counsel for the respondent, submits that the Labour Court has by its first order held that
the domestic inquiry is irregular and illegal and under such circumstances
ought not have permitted the Management to produce additional evidence before
the Court to prove the charges. The learned counsel further submits that though
the charges are of very serious nature, the punishment imposed is disproportionate
to the charges levelled and proved against the workman.
unable to countenance the submission made by the learned counsel for the
respondent. This Court in a judgment reported in 1973 (1) SCC 813 (The Workmen
of M/s. Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. etc. vs. The Management & ors. etc.) exhaustively
referred to various decisions of this Court and gave a clear picture of the
principles governing the jurisdiction of the Tribunals when adjudicating
disputes relating to dismissal or discharge. Paragraph 32 of the said judgment
is reproduced here:
decisions, the following principles broadly emerge:
The right to
take disciplinary action and to decide upon the quantum of punishment are
mainly managerial functions, but if a dispute is referred to a Tribunal, the
latter has power to see if action of the employer is justified.
the punishment, an employer is expected to conduct a proper enquiry in
accordance with the provisions of the Standing Orders, if applicable, and
principles of natural justice. The enquiry should not be an empty formality.
When a proper
enquiry has been held by an employer, and the finding of misconduct is a
plausible conclusion flowing from the evidence , adduced at the said enquiry,
the Tribunal has no jurisdiction to sit in judgment over the decision of the
employer as an appellate body. The interference with the decision of the
employer will be justified only when the findings arrived at in the enquiry are
perverse or the management is guilty of victimisation, unfair labour practice
or mala fide.
Even if no
enquiry has been held by an employer, or if the enquiry held by him is found to
be defective, the Tribunal in order to satisfy itself about the legality and
validity of the order, had to give an opportunity to the employer and employee
to adduce evidence before it. It is open to the employer to adduce evidence for
the first time justifying his action, and it is open to the employee to adduce
The effect of an
employer not holding an enquiry is that the Tribunal would not have to consider
only whether there was a prima facie case. On the other hand, the issue about
the merits of the impugned order of dismissal or discharge is at large before
the Tribunal and the latter, on the evidence adduced before it, has to decide
for itself whether the misconduct alleged is proved. In such cases, the point
about the exercise of managerial functions does not arise at all. A case of
defective enquiry stands on the same footing as no enquiry.
gets jurisdiction to consider the evidence placed before it for the first time
in justification of the action taken only, if no enquiry has been held or after
the enquiry conducted by an employer is found to be defective.
It has never been
recognised that the Tribunal should straightaway, without anything more, direct
reinstatement of a dismissed or discharged employee, once it is found that no
domestic enquiry has been held or the said enquiry is found to be defective.
An employer, who
wants to avail himself of the opportunity of adducing evidence for the first
time before the Tribunal to justify his action, should ask for it at the
such an opportunity is asked for, the Tribunal has no power to refuse. The
giving of an opportunity to an employer to adduce evidence for the first time
before the Tribunal is in the interest of both the management and the employee
and to enable the Tribunal itself to be satisfied about the alleged misconduct.
misconduct is proved either in the enquiry conducted by an employer or by the
evidence placed before a Tribunal for the first time, punishment imposed cannot
be interferred with by the Tribunal except in cases where the punishment is so
harsh as to suggest victimisation.
In a particular
case, after setting aside the order of dismissal, whether a workman should be
reinstated or paid compensation is, as held by this Court in The Management of Panitole
Tea Estate v. The Workmen (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal." This Court in
the above judgment held that even if no inquiry has been held by the employer
or the inquiry held is found to be defective, the Tribunal in order to satisfy
itself about the legality and validity of the order, had to give an opportunity
to the employer and employee to adduce evidence before it. It is open to the
employer to adduce evidence for the first time justifying his action, and it is
open to the employee to adduce evidence contra. Hence, the submission made by
the learned counsel for the respondent has no merit in view of the above
verdict of this Court and referred to above.
have also perused the award dated 7.12.1989 passed by the Labour Court. The Labour Court in the concluding
part of its award has held that the charges framed against the workman are
charges of misconduct of serious nature and, therefore, it agreed with the
argument of Management that it was not in the interest of Management and
industrial peace to retain such a person in service who was guilty of creating
indiscipline in the factory which affects the production of the factory
adversely. On the basis of the aforesaid discussion, the Labour Court came to the conclusion that the
Management had succeeded in proving the charges against the workman before the
Court. Hence, the Labour
Court held the
dismissal of the workman from service from 8.3.76 by the Management as
justified, proper and lawful and the concerned workman was held to be not
entitled to receive any benefit or relief. However, the High Court, as stated
earlier, interfered with the factual and categorical findings of the Labour Court and ordered reinstatement with back
wages and other benefits. In our opinion, the High Court while exercising
powers under writ jurisdiction cannot deal with aspects like whether the
quantum of punishment meted out by the Management to a workman for a particular
misconduct is sufficient or not. This apart, the High Court while exercising
powers under the writ jurisdiction cannot interfere with the factual findings
of the Labour Court which are based on appreciation of
facts adduced before it by leading evidence. In our opinion, the High Court has
gravely erred in holding that the evidence of respondent no.1 was not
considered by the Labour Court and had returned finding that the evidence of
respondent no.1 did not inspire any confidence. We are of the opinion that the
High Court is not right in intefering with the well considered order passed by
the Labour Court confirming the order of dismissal.
now stated that the respondent no.1 has retired from service on superannuation
on 30.9.1996. He was dismissed from service for the misconduct alleged and
proved against him by the Management on 8.3.1976. He had been without any
employment or without any income whatsoever. Taking a sympathetic and lenient
view of the matter and peculiar facts and circumstances of this case, even
though the factory unit of the appellant is closed, we direct the
appellant-Management to pay a sum of Rs.1,25,000/- in full and final quit of
all the claims of the appellant and the respondents. A demand draft of Rs.1,25,000/-
shall be drawn in the name of the respondent no.1 herein and handed over to the
learned counsel for the respondent within two weeks from today.
make it clear that the parties will have no other claim against each other. We
also make it further clear that the respondent no.1 is at liberty to withdraw
the contributions made by him along with contributions made by the Management
to the Provident Fund, with interest, and approach the appropriate authority
for such withdrawal. If such an application is made, concerned authority is
directed to make payment to respondent no.1 without raising any objection.
appeal is accordingly disposed of with no orders as to costs.