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M/S.U.P.S.R.T.C.& ANOTHER versus RAMJI NAIK & ANOTHER

High Court of Judicature at Allahabad

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M/S.U.P.S.R.T.C.& Another v. Ramji Naik & Another - WRIT - C No. 8481 of 1995 [2007] RD-AH 13904 (13 August 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                     Reserved

Writ Petition No.8481 of 1995

M/s Uttar Pradesh State Road Transport Corporation, Jhansi

and another.                    .........................Petitioners

Versus.

Ramji Naik and another.       ........................Respondents.

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Hon'ble Tarun Agarwala, J.

By means of this petition, the petitioners have challenged the validity and legality of the award passed by the labour court under Section 6-F of the U.P. Industrial Disputes Act. The facts leading to the filing of the writ petition is, that the workman was working as a conductor and was suspended on the basis of an inspection being made, wherein 14 passengers were found to be travelling on a bus without a ticket. The workman was chargesheeted. An enquiry officer was appointed to conduct the domestic enquiry. The enquiry officer submitted a report holding that the charges against the workmen stood proved. The management issued a show cause notice to show cause why the services of the workman should not be terminated. Subsequently, the management by an order dated 28.11.1992 terminated the services of the workman.

The workman, being aggrieved by the action of the management, filed an application under Section 6-F of the U.P. Industrial Disputes Act before the labour court alleging violation of the provision of Section 6-E (2)(b) of U.P. Industrial Disputes Act. The workman contended that adjudication case No.181 of 1992, with regard to his entitlement of wages to be given on the basis of work which he was performing, was pending adjudication before the labour court and, during its pendency, the employer could not alter the service conditions of the workman by way of termination without taking approval from the labour court. It was also alleged that by terminating the services of the workman, one month's wages, as contemplated under Section 6 E (2)(b), was also not paid. The labour court, after considering the evidence that was brought on the record, found that adjudication case No.181of 1992 was pending consideration before the labour court and, in view of the mandatory

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provision of  Section 6-E(2)(b) of the Act, the employer was required to take approval  of their action from the labour court which had not been done. The labour court, further found that the provision of taking approval under Section 6-E(2)(b) was mandatory in nature and non compliance of this provision resulted in passing a void order by the management. Consequently, the labour court held that since the approval had not been taken from the labour court, the order of termination was wholly illegal and that the workman was liable to be reinstated with back wages and other benefits from the date of his alleged termination.

Aggrieved by the aforesaid award, the petitioners have filed the present writ petition. Heard Sri R.A. Gaur, the learned counsel for the petitioner and Sri Ajit Kumar, the learned counsel for the respondent workman.

The learned counsel for the petitioner submitted that even if the employers had not taken approval of their aciton from the labour court under Section 6-E(2(b) of the Act, it was a mere irregularity which could not make the order of termination void and that the labour court could not set aside the order of termination merely because the approval had not been taken from the labour court. The labour court was further required to adjudicate on the merits and demerits of the order of termination. In support of his submission, the learned counsel placed reliance upon a decision of Supreme Court in AIR 1978 SC 995,  M/s Punjab Beverages Pvt. Ltd., Chandigarh, vs. Suresh Chand and another.

The learned  counsel for the petitioner further submitted that in any case, the petitioner was not required to obtain approval under Section

6-E (2) (b) of the Act because it was only available to those employers where Standing Orders was applicable to the workers. The learned counsel submitted that in the petitioners' corporation, their existed statutory Rules and Regulations and, on the basis of these statutory Rules and Regulations, the services of the workman was terminated. The learned counsel submitted that since there was no Standing Orders applicable to the petitioners corporation, nor was Model Standing Orders under the Industrial Employment (Standing

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Orders) Act applicable to the corporation, consequently, the provision of Section 6-E (2)(b) of the Act was not applicable nor was the employer required to obtain approval of the termination order from the labour court.

In my opinion, the submission of the learned counsel for the petitioner is bereft of merit. The first submission raised by the learned counsel for the petitioners has been squarely decided by a Constitution Bench judgment of the  Supreme Court in Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and others, 2002 (2) SCC 244, wherein the Supreme Court held

"The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33 (2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs.1000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33 (2) (b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong.  The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso of Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them is already strained.  An employer cannot be permitted to use the provision

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of Section 33 (2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman."

In view of the aforesaid, it is clear, that if the mandatory provision of Section 6-E (2)(b) of U.P. Industrial Disputes Act is not followed, the order of termination would be void ab initio and the workman would be entitled to be reinstated and that there would be no requirement for any adjudication to be made on the merits of the dismissal order.

With regard to the second submission, sub Section 2 of Section 6(E) empowers an employer to alter the conditions of service of a workman and also to discharge and punish him whether by way of dismissal or otherwise for the misconduct in accordance with the "Standing Orders" applicable to a workman.

From the language of this provision, it cannot mean that if an employer, who has no Standing Orders applicable to his company, corporation or firm,   could not take such an action. A careful reading of the provision would make it clear that during the pendency of any proceedings, the employer might, in accordance with the Standing Orders, if any, applicable to the workman concerned in such a dispute, take action contemplated by sub Section 2 of Section 6. In cases, where the Industrial Employment Standing Orders Act was not applicable or where it was applicable by omitting to frame the Standing Orders , an employee could not acquire plenary powers of discharge or dismissal of the workman. Consequently, merely because the Standing Orders was not applicable would not mean that the employer was powerless to take action against the workman. The words " in accordance  with the Standing Orders" indicate the act of misconduct forming the basis of the punishment of discharge or dismissal as defined in the Standing Orders. If the Standing

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Orders are not applicable, or if the Industrial Employment Standing Orders Act was not applicable, in that event, the misconduct has to be judged in accordance with the terms of the contract whether express or implied or in accordance with the statutory rules and regulations that is applicable to the workman.

Consequently, the submission  of the learned counsel for the petitioner, that the said provision was not applicable since the provision of the Industrial  Employment Standing Orders was not applicable, is patently erroneous.

In view of the aforesaid, this court does not find any merit in the writ petition and is dismissed. In the circumstances of the case, parties shall bear their own cost.

Dated: 13.8.07

SFH

       


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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