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M/S U.P.S.R.T.C. v. Harish Chandra Gautam & Another - WRIT - C No. 7079 of 1995  RD-AH 14474 (27 August 2007)
Judgment Reserved on 17.8.2007
Judgment Delivered on 27.8.2007
Court No. 35
Civil Misc. Writ Petition No. 7079 of 1995
M/s. Uttar Pradesh State Road Transport Corporation Jhansi
Harish Chandra Gautam & Anr.,
Hon. Dilip Gupta, J.
This writ petition has been filed for setting side the award passed by the Labour Court in Adjudication Case No. 120 of 1993. The reference that had been made to the Labour Court was whether the employers were justified in terminating the services of the respondent-workman w.e.f. 21st July, 1992 and if not then to what relief the workman was entitled to.
The respondent-workman was appointed as a Conductor in the U.P. State Road Transport Corporation (hereinafter referred to as the ''Corporation') on 3rd March, 1989. On 22nd March, 1990 the bus was checked by the Inspecting Team and it was found that the respondent-workman was carrying 58 passengers without tickets and even on being asked by the team he did not handover the way-bill. On the basis of the preliminary enquiry, the respondent-workman was suspended on 7th April, 1990 and thereafter he was served with a charge-sheet dated 16th April, 1990. The reply submitted by him was not found to be satisfactory as a result a domestic inquiry was initiated against him in which even though notices were repeatedly issued, he did not appear before the Inquiry Officer. Evidence was led on behalf of the employers and ultimately the Inquiry Officer submitted his report with the finding that the charges were fully proved. The Disciplinary Authority agreed with the findings of the Inquiry Officer and a show-cause notice was served upon the respondent-workman. Thereafter the services of the workman were terminated by the order dated 21st July, 1992. The respondent-workman raised an industrial dispute. The Labour Court in its order dated 27th July 1994 observed that the domestic inquiry had not been conducted in a fair and proper manner as the evidence of the employers was not taken in the presence of the respondent-workman and nor was he given any opportunity to cross-examine the witnesses. The Labour Court, therefore, gave opportunity to the employers to lead evidence.
The respondent-workman in his statement before the Labour Court completely denied that any inspection of the Bus had taken place on 22nd March, 1990. He also stated that the main reason for passing the order of termination against him was that he did not pay Rs. 1,000/- to the Dealing Assistant. He also stated that on 22nd March, 1990 when he was posted as a Conductor in Bus No. UTW-9309, which was scheduled to go from Rath to Kanpur, Traffic Inspector Ranjeet Singh had checked the bus at about 11:05 A.M. between two Stations Chilli and Biwar but he did not report that any passenger was travelling without ticket. On behalf of the employers, Sri A.P. Singh Tyagi, Traffic Inspector appeared to give his statement. He stated that he along with Sri Sharda Prasad, Junior Station In-charge and Sri R.C. Sharma, Junior Foreman inspected the bus at about 11:40 A.M. between Ujnedi on Panthiya bus-stops and found that out of the 98 passengers, there were 58 passengers who were travelling without tickets and on being asked, the passengers told them that the Conductor had taken the money from them but had not issued the tickets. He, however, stated that neither the names or the statements of the passengers who were travelling without tickets were recorded. He also stated that Exhibit-8 was the copy report submitted by them and that the Conductor of the Bus refused to give the way-bill on being asked and that the First Information Report was lodged by them. He also stated that the passengers got angry when they were asked to take tickets and that subsequently the amount fetched from the tickets including the amount taken from the ticketless passengers was deposited in the Treasury.
The Labour Court rejected the contention of the respondent-workman that no checking had been done at 11:40 A.M. but observed that it could not be proved that 58 passengers were travelling without tickets. The Labour Court noticed the admission of the employers' witness that the entire amount had been deposited in the Treasury and that in the earlier checking done at 11:05 A.M. the Traffic Inspector did not report that any passenger was travelling without ticket. It, however, found that as the bus Conductor was guilty of disobedience of orders, the order of dismissal from service was not justified and the punishment of stopping of two years increments and the award of adverse entry in the service book would be appropriate.
Learned counsel for the petitioner submitted that the finding recorded by the Labour Court that the employers could not prove that 58 passengers were travelling without tickets is perverse inasmuch as there was sufficient evidence before the Labour Court for it to come to the conclusion that they were travelling without tickets. He further submitted that the Labour Court was not justified in substituting the punishment imposed upon the respondent-workman. Sri Ajit Kumar learned counsel appearing for the respondent-workman, however, submitted that the employers had failed to prove that 58 passengers were travelling without ticket inasmuch as the statement of these passengers was not recorded and nor they were examined before the Labour Court. He also submitted that, in fact, the second inspection had not been made at 11:40 A.M. and even otherwise when in respect of the earlier inspection made at 11:05 A.M. the Traffic Inspector had not submitted a report that any passenger was travelling without ticket, it cannot be believed that at 11:40 A.M. when the second checking is said to have been done by the Inspecting Team, 58 passengers were found travelling without tickets. He, therefore, submitted that in such circumstances the Labour Court was justified in substituting the punishment.
I have carefully considered the submissions advanced by the learned counsel for the parties.
The Labour Court has recorded a categorical finding that the second inspection at 11:40 A.M. had taken place. This inspection was carried out by Sri Sharda Prasad, Junior Station In-charge, Sri R.C. Sharma, Junior Foreman and Sri A.P. Singh Tyagi, Traffic Inspector. The bus had started from Rath and was to go to Kanpur. The first inspection was carried out by the Traffic Inspector, Sri Ranjeet Singh at about 11:05 A.M. between the two Stations Chilli and Biwar. The second inspection was carried out at about 11:40 A.M. by the aforesaid three officers of the Corporation when it was found that out of 98 passengers, 58 passengers were travelling without tickets. The report had been filed before the Labour Court and Sri A.P. Singh Tyagi who had appeared before the Labour Court as a witness of the employers clearly proved this report. He also stated that the passengers had clearly informed them that the Conductor had taken the money from them but had not issued the tickets and that the Conductor even refused to give them the way-bill in spite of their asking for it.
The Labour Court has not given any cogent reason as to why the employers failed to prove that 58 passengers were travelling without tickets though two factors have been mentioned by the Labour Court namely that the employers' witness admitted that subsequently the amount collected from the tickets was deposited in the Treasury and that in the earlier checking at 11:05 A.M. the Traffic Inspector did not report that passengers were travelling without tickets.
The contention of the learned counsel for the petitioner that it was imperative for the employers to have recorded the statement of the ticketless passengers and they should also have been produced before the Labour Court cannot be accepted.
The Supreme Court in Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane (2005) 3 SCC 254 after placing reliance upon the earlier decision in State of Haryana Vs. Rattan Singh (1977) 2 SCC 491 and Devendra Swamy Vs. Karnataka SRTC (2002) 9 SCC 644 observed:-
"In the present case, there is evidence of the inspector who checked the bus which establishes the misconduct of the respondent. The domestic tribunal accepted that evidence and found the respondent guilty. But the courts below misdirected themselves in insisting on the evidence of the ticketless passengers to reject the said finding which, in our opinion, as held by this Court in the case of Rattan Singh is not a condition precedent. We may herein note that the judgment of this Court in Rattan Singh has since been followed by this Court in Devendra Swamy v. Karnataka SRTC.
Since the only ground on which the finding of the domestic tribunal has been set aside being the ground that the passengers concerned are not examined or their statements were not recorded, in spite of there being other material to establish the misconduct of the respondent, we are of the opinion, the courts below have erred in allowing the claim of the respondent. In our opinion, the ratio laid down in the above case of Rattan Singh applies squarely to the facts of this case.
In the instant case also there is the evidence of the inspector who conducted the checking which establishes the misconduct of the respondent based on which a finding was given that the respondent was guilty of the misconduct alleged. Based on the said finding, the disciplinary authority has punished the respondent by an order of dismissal. But the Labour Court and the learned Single Judge rejected the said finding and set aside the punishment imposed solely on the ground that the evidence of the passengers concerned was not adduced and their statements were not recorded by the inspector which as stated in Rattan Singh case is not a condition precedent. Therefore, we are of the opinion that the courts below have erred in interfering with the finding of fact on an erroneous basis." (emphasis supplied)
This decision was approved and relied upon by the Supreme Court in Cholan Roadways Ltd. Vs. G. Thirugnanasambandam, 2005 AIR SCW 84.
The aforesaid decisions of the Supreme Court clearly hold that it is not necessary that the ticketless passengers should be examined or their statements should be recorded and the report of the Inspecting Team and the evidence led can be relied upon to establish the misconduct of the workman. In the present case, not only the report of the Inspecting Team had been placed before the Labour Court but Sri A.P. Singh Tyagi Traffic Inspector had appeared before the Labour Court who not only proved the report but also clearly stated that the team had found 58 passengers travelling without tickets and that the passengers had told them that they had paid the amount to the Conductor but he has not issued the tickets to them. The mere fact that in the earlier inspection carried out at 11:05 A.M., the Traffic Inspector did not report that passengers were travelling without tickets does not establish that 58 passengers were travelling without tickets when the subsequent inspection was made at 11:40 A.M. by a team consisting of three officers.
Learned counsel for the respondent-workman placed reliance on the decision of the Supreme Court in Union of India Vs. H.C. Goel AIR 1964 SC 364 in support of his contention that mere suspicion should not be allowed to take the place of proof even in a domestic inquiry and the relevant portion of the judgment on which emphasis was placed is quoted below:-
".......Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. We have very carefully considered the evidence led in the present enquiry and borne in mind the plea made by the learned Attorney-General, but we are unable to hold that on the record, there is any evidence which can sustain the finding of the appellant that charge No. 3 has been proved against the respondent." (emphasis supplied)
In this case the Supreme Court found that there was no evidence on the record which could sustain the finding in respect of the charge and it was only on the basis of suspicion that the employers had imposed the punishment. The aforesaid judgment is of no benefit to the respondent-workman as in the present case, there was sufficient material before the Labour Court to come to the conclusion that 58 passengers were travelling without tickets. In the first instance, the report of the Inspecting Team was filed before the Labour Court and secondly the member of the Inspecting Team was also examined before the Labour Court who clearly stated that 58 passengers were travelling without tickets. It cannot, therefore, be said that there was no evidence on the record. As noticed above, the Supreme Court in Divisional Controller KSRTC (supra) clearly observed that the evidence of the Inspector who checked the bus can be taken into consideration for establishing the misconduct.
This apart, the Supreme Court in the case of High Court of Judicature at Bombay through its Registrar Vs. Shri Udaysingh s/o Ganpatrao Naik Nimbalkar & Ors., JT 1997 (5) SC 298 held that disciplinary proceedings are not a criminal trial and, therefore, the scope of enquiry is entirely different from that of a criminal trial in which the charge is required to be proved beyond doubt. In the case of disciplinary enquiry, the technical rules of evidence have no application and preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion. The same view was reiterated by the Supreme Court in the case of Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miya AIR 1997 SC 2232 and in the case of Lalit Popli Vs. Canera Bank & Ors., (2003) 3 SCC 583. It was held that strict standard of proof or applicability of the Evidence Act stands excluded and the standard of proof in the departmental proceedings is not the same as of the criminal trial. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him.
This principle was reiterated by the Supreme Court in Cholan Roadways Ltd. Vs. G. Thirugnanasambandam 2005 AIR SCW 84 and it was observed that it is a well-settled principle that the principles of Evidence Act have no application in a domestic enquiry.
In view of the aforesaid, I am of the considered opinion that there was sufficient material before the Labour Court to come to the conclusion that 58 passengers were travelling without tickets and the finding to the contrary recorded by the Labour Court cannot be sustained.
Learned counsel for the petitioner also submitted that the Labour Court was not justified in interfering with the quantum of punishment.
The scope of interference by Courts with the quantum of punishment has been the subject matter of a number of decisions and it has been repeatedly emphasised that interference cannot be done in a routine manner and that the principles relating to judicial review of administrative action have necessarily to be examined.
The famous "Wednesbury Case" Associated Provincial Picture Houses Ltd. Us. Wednesbury Corp. (1947) 2 All ER 680 (CA) is considered to be the landmark in so far as the basic principles relating to judicial review of administrative or statutory discretion are concerned. A passage from the judgment of Lord Greene is important and is quoted :-
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word ''unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters, which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ''unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority...... . In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another." (emphasis supplied)
The principles of judicial review of administrative action were further summarized by Lord Diplock in Council of Civil Service Unions Vs. Minister for the Civil Service 1984 (3) Al. ER. 935, (commonly known as CCSU case) as illegality, procedural impropriety and irrationality. It was observed in this case as follows:-
"....... Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ''illegality', the second ''irrationality' and the third ''procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ''proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community."
"By ''irrationality' I mean what can by now be succinctly referred to as ''Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." (emphasis supplied)
In Union of India & Anr,. Vs. G.Ganayutham (1997) 7 SCC 463 the Supreme Court after referring to the aforesaid Wednesbury case and CCSU case held:-
"We are of the view that even in our country-in cases not involving fundamental freedoms-the role of our courts/tribunals in administrative law is purely secondary and while applying Wednesbury and CCSU principles to test the validity of executive action or of administrative action taken in exercise of statutory powers, the courts and tribunals in our country can only go into the matter, as a secondary reviewing court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU tests. The choice of the options available is for the authority; the court/tribunal cannot substitute its view as to what is reasonable.
In such a situation, unless the court/tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi case that the Court might - to shorten litigation - think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority." (emphasis supplied)
In B.C. Chaturvedi V. Union of India and others, (1995) 6 SCC 749, which has been referred to in the aforesaid decision in G.Ganayutham (supra), the Supreme Court after referring to a number of its earlier decisions observed as under:-
"A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." (emphasis supplied)
In Apparel Export Promotion Council Vs. A.K. Chopra, AIR 1999 SC 625, the Supreme Court again observed :-
"...............Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty."
The matter relating to quantum of punishment was also elaborately considered by the Supreme Court in Om Kumar & Ors. Vs. Union of India, (2001) 2 SCC 386 and it was observed :-
"But where an administrative action is challenged as "arbitrary" under Article 14 on the basis of Royappa (1994) 4 SCC 3 (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. [In G.B. Mahajan v. Jalgaon Municipal Council (1991) 3 SCC 91] Venkatachaliah, J. (as he then was) pointed out that "reasonableness" of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata Cellular v. Union of India (1994) 6 SCC 651, Indian Express Newspapers Bombay (P) Ltd. v. Union of India (1985) 1 SCC 641, Supreme Court Employees' Welfare Assn. v. Union of India (1989) 4 SCC 187 and U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd. (1993) 2 SCC 299 while judging whether the administrative action is "arbitrary" under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always.
Thus, when administrative action is attached as discriminatory under Article 14, the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as "arbitrary" under Article 14, the principle of secondary review based on Wednesbury principles applies. (emphasis supplied).
Proportionality was also explained by observing :-
"By "proportionality", we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve". The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality."
In Regional Manager, U.P. SRTC, Etawah & Anr. Vs. Hoti Lal & Anr. (2003) 3 SCC 605 the Supreme Court observed :-
"If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding the order of dismissal." (emphasis supplied)
In Regional Manager, Rajasthan State Road Transport Corporation Vs. Sohan Lal, (2004) 8 SCC 218 it was pointed out by the Supreme Court:-
"Assuming for argument sake that the High Court by the impugned order proceeded on the basis that though the misconduct is proved the punishment was disproportionate and it is on that basis that the impugned order is made, even then we are unable to agree with the order of the Appellate Bench of the High Court because it is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless the said sentence is wholly disproportionate to the misconduct proved. No such finding has been recorded by the Appellate Bench in the impugned order. Since, the misconduct proved is one of dishonesty, the quantum of loss is immaterial, it is the loss of confidence that matters. ..............." (emphasis supplied)
In V.Ramana Vs. A.P.SRTC & Ors., (2005) 7 SCC 338 the Supreme Court observed :-
"The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/Tribunal, there is no scope for interference." (emphasis supplied)
In Canara Bank Vs. V.K. Awasthy, (2005) 6 SCC 321, the Supreme Court after considering the aforesaid decisions observed that interference by the Courts with the quantum of punishment cannot be in a routine manner and in a matter where the bank employee has failed to discharge his duty with utmost honesty, integrity, devotion and diligence the punishment of dismissal from the bank was justified.
In B. Swamy Vs. The Depot Manager, APSRTC JT 2007 (6) SC 290 the Supreme Court observed:-
"A conductor of a bus enjoys the faith reposed in him. He accepts the responsibility of honestly collecting fares from the passengers after issuing proper tickets and is obliged to account for the money so collected. If conductors were to be dishonest in the performance of their duties, it would cause serious pecuniary loss to the employer. The High Court was, therefore, not justified in observing that the management gave "excess gravity" to the offence. We are constrained to observe that the High Court was not justified in characterizing the order of the management as one induced by exaggeration of the gravity of the offence. The conductor performs only the duty of issuing tickets to the passengers and accounting for the fare collected from the passengers to the management. If he is dishonest in the performance of his duties, he is guilty of serious misconduct and the gravity of the misconduct cannot be minimized by the fact that he was not earlier caught indulging in such dishonest conduct. There is no guarantee that he had not acted dishonestly in the past as well which went undetected. Even one act of dishonesty amounting to breach of faith may invite serious punishment." (emphasis supplied)
The aforesaid decisions of the Supreme Court clearly emphasise that where the punishment in disciplinary cases is challenged as being arbitrary, the question that would arise for consideration would be whether the administrative order is "rational" or "reasonable" and the test then to be applied is the "Wednesbury" test. The Courts will then be confined only to a secondary role to find out if the action satisfies the test. The disciplinary authority and the appellate authority, being fact finding authorities, have the exclusive power to consider the evidence with a view to maintain discipline and they are vested with the discretion to impose appropriate punishment keeping in view the gravity of the misconduct. It has also been emphasised that the High Court while exercising the power of judicial review cannot normally substitute its own opinion and impose some other penalty unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court in the sense that it is in defiance of logic or moral standards.
It is also clear from the aforesaid decisions of the Supreme Court in B. Swamy (supra) and Hoti Lal (supra) which deal with Bus Conductors that as they hold a post of trust where honesty and integrity are inbuilt requirements of functioning, the Courts should not deal with the matter leniently and that when a Conductor is dishonest in the performance of his duties, he is guilty of serious misconduct. The Courts, in such circumstances, have to deal with iron hands and even one act of dishonesty amounting to breach of faith may invite serious punishment. In the present case, the respondent-workman was carrying 58 passengers without ticket. He did not even handover the way-bill when he was asked to do so by the Inspecting Team. In such circumstances, the punishment of dismissal from service cannot be said to be disproportionate to the gravity of misconduct.
For all the reasons stated above, the award of the Labour Court cannot be sustained. It is, accordingly, set aside.
The writ petition succeeds and is allowed. There shall be no orders as to costs.
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