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U.P. STATE ROAD TRANSPORT CORPORATION versus SURENDRA SINGH AND ANOTHER

High Court of Judicature at Allahabad

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U.P. State Road Transport Corporation v. Surendra Singh And Another - WRIT - C No. - 17582 of 2006 [2007] RD-AH 18115 (20 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 17582 of 2006

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U.P. State Road Transport Corporation through its Regional Manager, Meerut Vs. Surendra Singh & Another

Hon. Arun Tandon J.

Heard learned counsel for the parties.

U.P. State Road Transport Corporation (for short 'UPSRTC') has filed this writ petition against the award of the Labour Court on 16th June, 2005 passed in Adjudication Case No. 131 of 2003. The dispute between the employers (UPSRTC) and its workman Sri Surendra Singh, with regard to the order of punishment dated 28th June, 2002, whereby the workman was removed from service after holding enquiry, was referred under Section 4-K of the Industrial Disputes Act. The Labour Court, under the impugned award, has held that the order of punishment dated 28th June, 2002 was illegal. The workman is entitled to be reinstated w.e.f. January, 2003. In respect of the back wages, 50% of the total wages admissible has been awarded with a cost of Rs. 2000/-.

The facts giving rise to the present writ petition are as follows:

The workman was employed as a driver in UPSRTC. He was served with charge-sheet no. 1951 dated 26th April, 1999, which amongst included (a) the charge of intentionally not completing the full journey of the bus on the prescribed routes on 9th March, 1999, 11th March, 1999, 26/27th March, 1999 and on 16th April, 1999, (b) the charge of loss of 3355/- caused to the Corporation/ State Government because of not completion of the aforesaid journey. The other charge was with regard to the indiscipline and misbehaviour with the Senior Officers of the Corporation, the workman submitted a reply to the charges so levelled and denied the same. After departmental enquiry, a second show-cause notice dated 23rd June, 2000 was issued to the workman requiring him to show-cause as to why he may not be removed from service.

Another charge-sheet no. 3515 of 1999 dated 23rd July, 1999 was issued to the workman relating to his late coming on duty, refusing to drive the bus on the routes and indiscipline and misbehaviour with senior officers of the Corporation. The departmental enquiry was initiated in respect of the charges, after departmental enquiry and opportunity to lead the evidence as well as to cross-examine the departmental witnesses. Enquiry Officer submitted his report recording therein that the charges have been found proved against the workman. Accordingly second show-cause notice dated 17th April, 2002 along with a copy of the enquiry report was forwarded to the workman (respondent no.2) requiring him to show-cause as to why he may not be removed from service.

While the matter was still pending consideration, third charge-sheet no. 2382 dated 17th July, 2000 was issued to the workman on the charges that he has refused to drive the vehicle of the Corporation on 24th April, 2000 and has abused and threatened Senior Officers of the Corporation. As a consequence thereto, departmental enquiry was initiated in respect of these charges, wherein full opportunity was afforded to the workman. The Enquiry Officer submitted his report recording therein that the charges as levelled against the workman, have been found proved. Thereafter a second show-cause notice was issued to the workman requiring him to show-cause as to why he may not removed from service.

In between a fourth charge-sheet no. 1587 of 2001 dated 1st May, 2001 was issued to the petitioner qua his absence from duty on various dates without leave, causing loss to the Corporation as well as adversely affecting the business of the corporation as well as the charge of indiscipline and misbehaviour with Senior Officers of the Corporation. In respect of this charge-sheet, a separate departmental enquiry was initiated, and after affording full opportunity of hearing to the workman, the enquiry officer submitted his reply recording therein that the charges levelled against the workman have been partly proved. Accordingly a second show-cause notice dated 11th April, 2002 was issued to the workman.

After explanations were furnished by the workman to all the second show-cause notices referred to above, the Appointing Authority after considered the enquiry reports and the explanation furnished thereto by the workman, passed the order of punishment dated 28th June, 2002 as detailed below.

With regard to charge-sheet no. 1951 dated 26th April, 1999 the workman was awarded an adverse entry in his character roll with a further direction of recovery of Rs. 3500/- said to be loss caused to the Corporation. With regard to charge-sheet no. 3515 dated 23rd July, 1999, punishment of removal from service was imposed with a further direction of recovery of Rs. 39, 530/- from the gratuity payable to the workman. With regard to charge-sheet no. 2382 dated 17th July, 2000, punishment of removal from service was imposed. With regard to the charge-sheet no. 1587 of 2001 dated 1st May, 2001, punishment of removal from service was imposed upon the workman.

Against the aforesaid order of punishment of removal from service under order dated 28th June, 2002, the workman raised an industrial dispute, which was referred for adjudication by the State Government to the Labour Court vide order dated 28th April, 2003. The said reference was registered as Adjudication Case No. 131 of 2003. The award made therein dated 16th June, 2005 gives rise to this writ petition.

From the record of the proceedings, it is apparently clear that the order of punishment in respect of charge-sheet no. 1951 dated 26th April, 1999 was not challenged by the workman and the same became final.

Before the Labour Court, a preliminary issue was framed as to whether the departmental enquiry conducted against the workman was fair and proper or not?

The Labour Court, under the impugned award has held that all the four charge-sheets, as served upon the workman were vague and the evidences proposed to be relied upon by the employers for brining home the charges, had not been disclosed. The Labour Court has thereafter proceeded to hold that the documents asked for by the workman during the departmental proceedings, were not made available to him. Having regard to the various judgements of the Hon'ble Supreme Court, the Labour Court has come to the conclusion that the departmental enquiry in respect of aforesaid three charge-sheets, which were subject matter of dispute, were not in accordance with the principles of natural justice and that the workman has not been afforded full and fair opportunity to defend himself. The Labour Court has finally held that the order of punishment was legally not justified, it has directed reinstatement with 50% back-wages.

The findings recorded by the Labour Court are being questioned on behalf of the employers by means of this writ petition firstly on the ground that all the charge-sheets, as served upon the workman, contained definite charges and the evidence proposed to be relied upon was also specifically indicated in the charge-sheet.

A copy of the charge-sheet dated 23rd July, 1999 along with enquiry report has been enclosed as Annexure-4 to the writ petition. A copy of the charge-sheet dated 17th July, 2000 along with enquiry report has been enclosed as Annexure-5 to the writ petition. A copy of the charge-sheet dated 1st May, 2001 along with enquiry report has been enclosed as Annexure-6 to the writ petition.

On examination of the aforesaid charge-sheets by this Court, it is apparent that not only the dates of absence from duty, but also the time of the departure of the vehicle, vehicle number and the officers with whom the workman had misbehaved, had specifically been stated. The details of the required kilometres not done by the workman on respective dates, were also specifically disclosed in form of a chart along with charge-sheet, the evidence proposed to be relied upon for bringing home the charges have specifically been mentioned including the statements of the Officers and the reports submitted in that regard. It was specifically provided in the charge-sheet that a photo copy of the documents relied upon are being forwarded along with the respective charge-sheet.

This Court may record that the findings of the Labour Court to the effect that the charge-sheet, as served upon the workman, was vague and the evidence proposed to be relied upon by the employers for brining home the charges, were not disclosed, is therefore, perverse and is based on complete non-consideration of the charge-sheet, which admittedly formed part of the record. Since the finding of the Labour Court that the charge-sheets as served upon the workman were vague and did not disclose the evidence proposed to be relied upon, run contrary to the material evidence on record, the same is unsustainable in the eyes of law.

So far as the second ground for challenging the award is concerned, the Court may record that although there may be a different view plausible with regard to the violation of principles of natural justice and the fairness of the departmental enquiry held against the workman concerned but having regard to the settled principle of law, on which a power of judicial review under Article 226 of the Constitution of India is to be exercised, this Court thinks it proper to not to interfere with the conclusions arrived at by the Labour Court qua the domestic enquiry being not free and fair.

This leads the Court to the issue as to whether in the facts of the present case the employers had asked for an opportunity to prove the charges levelled against the workman before the Labour Court itself or not. In paragraph-27 of the writ petition it has been stated that in the written statement it was specifically pleaded on behalf of the Corporation that in case it is found that the departmental enquiry was not free and fair, an opportunity to lead additional evidence to bring home the charges against the workman be afforded to the employers. The Labour Court has not afforded such opportunity to the employers and has proceeded to set aside the order of punishment under the impugned award.

Learned counsel for the petitioner-employers with reference to the judgements of the Hon'ble Supreme Court in the cases of Bharat Forge company Ltd. Vs. A.B. Zodge and Another; 1996 (73) FLR 1754 (SC), Karnataka State Road Transport Corporation Vs. Lakshmidevamma (Smt.) & Another; 2001 ( 5) SCC 479, and Divyash Pandit Vs. Management N.C.C.B.M.; 2005 (104) FLR 108 (SC), submits that such denial of opportunity by the Labour Court will vitiate the award of the Labour Court. In counter affidavit filed on behalf of the respondent-workman, the contents of para-27 of the writ petition have been denied by way of paragraph-18, which reads as follows:

"18. That in reply to the contents of paragraph 27 of the writ petition it is stated that the written statement of the Corporation should not be looked into only for the reason that the petitioner Corporation has concealed the written statements on behalf of the deponent in all fairness. It should have against the writ petition the written statement and the rejoinder statements and the copy of the deposition of his witnesses to the writ petition."

In the opinion of the Court the denial as contained in paragraph-18 of the counter affidavit is only vague and half hearted and therefore, submission made in paragraph-27 of the writ petition has to be accepted.

It was mandatory upon the Labour Court to have afforded opportunity to the employers to bring home the charges before the Labour Court itself, after the Labour Court had come to the conclusion that the departmental enquiry was not free and fair. This Court may further record that the Hon'ble Supreme Court of India in the case of L.K. Verma Vs. H.M.T. Ltd. & Another; 2006 (2) SCC 269, Mahindra & Mahindra Ltd. Vs. N.B. Narawade; 2005 (3) SCC 134, has specifically held that the charge of abusing and misbehaving with senior officers, if found proved is serious enough to warrant the major penalty of removal from service.

In view of the aforesaid, this Court is satisfied that the award of the Labour Court dated 16th June, 2005, in so far as it directs reinstatement of the workman and payment of 50% of the back-wages, is legally not justified and is hereby quashed. Adjudication Case No. 131 of 2003 is restored to its original number. The Labour Court shall re-hear the matter from the stage, it was held that the domestic enquiry held by the employers was not free and fair. The Labour Court shall afford opportunity to the employers to lead additional evidence for bringing home the charges against the workman. The workman will be at liberty to lead his evidence in support of his case in reply thereto. Thereafter the Labour Court shall make a fresh award in accordance with law.

The aforesaid exercise may be completed within six weeks from the date a certified copy of this order is filed before Labour Court.

In order to keep the records straight, it may be noticed that on 6th November, 2006, an interim order granted earlier by the Court on 30th March, 2006 was modified and direction was issued to the petitioner to comply with Section 17-B of the Industrial Disputes Act, 1947. The employers not being satisfied with the order dated 6th November, 2006 filed Civil Appeal No. 359 of 2007 before the Hon'ble Supreme Court of India. The Civil Appeal has been allowed vide judgement and order 25th January, 2007 and Hon'ble High Court was requested to decide the matter within six months. Accordingly this writ petition has been heard and finally decided by the Court today.

The writ petition is accordingly allowed subject to the observations made above.

November 20th, 2007

Sushil/-


Copyright

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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