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M/S. Star Paper Mil Ltd. v. Labopur Court & Others - WRIT - C No. 41161 of 2001  RD-AH 573 (28 February 2005)
Hon'ble Rakesh Tiwari, J.
This writ petition is directed against the impugned award dated 30th November, 2000, contained in Annexure XII to the writ petition, passed by the designated Presiding Officer, Labour Court U.P. for district Saharanpur.
The Labour court, by the impugned award, decided the reference in favour of the workman and has held that the action of the management in terminating the services of the workman w.e.f. 31.3.1998 is illegal and unjustified. It has further been held that the punishment of termination from service was too harsh and disproportionate to the misconduct. While granting relief of reinstatement with full back wages to the workman, the Labour Court also directed that instead of termination of service, stoppage of one increment and withholding the wages for period of suspension would be the appropriate punishment on the facts and in the circumstances of the case.
The dispute relates to the termination of services w.e.f. 31.3.1998 of respondent no. 4-S.P.Singh Verma.
Aggrieved by his termination, the workman raised an industrial dispute. The events which led to the termination of services of the workman were that on the fateful day, i.e., on 8th January, 1998, some labourers gathered at time office due to death of one Yunes who died a natural death in the factory, he was brought from the workshop. His body was taken to the hospital where he was declared dead. At about 13.45 hours, a sudden development occurred A procession of workmen also reached the gate. The two gates of the factory were closed before their arrival as a precautionary measure. The leaders were allowed to enter the gate and they went inside to discuss the situation with the management. The talks were going on and leaders were coming in and out of the gate. The mob also blocked the road. At about 16.30 hours, the workmen lost patience and tried to climb over the gate. In the meantime, the respondent no. 4 on the instructions of Joint Manager (Administration) opened the small vicker gate to let out persons carrying mail and as a result a situation developed when some workmen forcibly entered through the Vicker gate when it was opened to let out the aforesaid two persons carrying mail.
On conciliation proceedings having failed, the matter was referred by the State Government to respondent no. 1- designated Presiding Officer, Labour Court, U.P for district Saharanpur. The reference was registered as Adjudication Case No. 93 of 1999 before the Labour Court.
The case of the employers was that the respondent no. 4- workman concerned was employed as Security Inspector. As per appointment letter, which is contained in Annexure 1 to the writ petition, his services were governed by the Service Rules of the company applicable to the senior members of staff.
At the time of admission, an interim mandamus was issued by this court keeping in abeyance the operation of the impugned award dated 30.11.2000 till further orders of the court.
Sri V.B. Singh, Senior Advocate, assisted by Sri Vijay Sinha,Counsel for the petitioner assailed the impugned award on two grounds, firstly, that since the punishment of termination of the services of the workman was proportionate to the gravity of misconduct committed by him, the Labour Court has erred in holding that the misconduct was not grave and, secondly, that the respondent no. 4- workman was working in a supervisory capacity and was not a workman within the meaning of Section 2(z) of the U.P. Industrial Disputes Act, 1947. Counsel for the petitioner, in support of his contention that the respondent no. 4 was not a workman, invited the attention of the court to the following portion of clause 6 of the appointment letter of the workman, dated 7.7.94:-
"6.Your services shall be governed by the Service Rules of the Company applicable to Senior Members of Staff a copy whereof is appended hereto which becomes part and parcel of you terms of employment with the company."
The duties of respondent no. 4- workman as Shift Inspector are contained in Annexure 14, a perusal whereof reveals that he had to perform the following duties :-
Shift Inspector reports to Sr. Officer (Security), Head (Security) and shall have the following responsibilities:-
(i) Depoly the security personnel of his shift as per duty roster
(ii) Arrange substitute or sometime extra security personnel for deputing at critical locations, in consultation with Sr. officer (Security)/Head (Security).
(iii) Make surprise/routine checks of all the security posts as well as other prominent areas of the mills.
(iv) Report the major events/happenings to the Sr. officer (Security)/Head (security) and also arrange adequate security measures as per need.
(v) Report telephonically at the end of the shift regarding satisfactory situation or otherwise to the Sr. officer (Security)/ Head (security).
(vi) Submit written report for cases worth investigation.
(vii) Any other assignments given by Sr. Officer (Security)/Head (Security) from time to time.
He has also placed reliance on pragraph 34 of the written statement in which it has been stated that the workman was drawing salary of about Rs.6000/- per month and urged that according to the definition of workman in Section 2(z) of the U.P. Industrial Disputes Act, 1947, he was not a workman by virtue of discharging supervisory duties and earning more than Rs.500/- per month as wages.
Counsel for the petitioner drew the attention of the court to the following portion of the report of Sri V.Kumar, Chief Security Officer to convince the court that this was a serious act of indiscipline which could have resulted in huge loss and terrible incident:-
".....the opening of the small gate was a bad show by SI Verma who took this as an order from Sri R.K. Gupta. This should have been conveyed to me who had given strict instructions not to open the gate and keep the lock. More so when I was at a showing distance, the situation was not worth opening the gate and as such ugly situation happened."
He submits that the workman was charge sheeted and after holding domestic enquiry, he was terminated from service. The departmental enquiry was found to be fair and proper by the Labour Court as such, order of termination could not be said to be disproportionate to the guilt. A feeble attempt to justify the action of termination has been made by the counsel for the petitioner that the office of Senior Supervisor (Security) was nearby at a showing distance and before opening the vicker gate, the workman could also have taken instructions from him which he did not do but took the instructions from Sri R.K.Gupta as an order and as such there was no mitigating circumstance in which the Labour Court could have interfered with punishment of termination of service awarded to the workman for committing gross misconduct of indiscipline and in violation of lawful orders of not opening the gate.
Sri Arun Saunders appearing on behalf of the respondent-workman submits that the workman had never disobeyed any order of the management and the charge sheet issued to him was totally baseless. He further sumits that neither the workman committed any indiscipline nor there was any lapse on his part but has been made a scapegoat by the management. He submits that the Joint Manager (Administration) Sri R.K.Gupta who was much superior to Sri V.Kumar, Chief Security Officer rang up at the security gate where the workman was on duty and directed him to let out a courier and another workman from the premises of the factory as certain mail was urgently required to be delivered. On his instructions, the workman let out those two persons from the Vicker gate. When the Vicker gate was opened by the workman for letting out those two persons, 2-3 workmen forcibly tried to enter into the factory premises and that the workman was being made a scapegoat by the company for an act which was done in obedience of the order of the higher authority and not in disobedience. He also drew the attention of the court towards the following statement of Sri Ram Kumar Gupta, Joint Manager (Administration) in support of his contention that the workman had only obeyed the instructions of Sri Gupta :-
".............eSaus muls dgk fd etnwjksa dks le>kvks fd muds izfrfuf/k izca/k oxZ ls ckrphr dj jgs gSa vr% etnwj 'kkar jgsa A eSaus Jh oekZ ls ;g Hkh dgk vxj gks lds rks dksfj;j okys vkneh dks ckgj tkus nsuk A ml le; 'kke ds djhc 6&15 cts gksaxs A blds ckn esjh Jh oekZ ls dksbZ ckrphr ugha gqbZ A vkSj u gh Jh oekZ usa eq>s dksfj;j okys vkneh ds ckjsa esa eqz>s dqN crk;k A bl nkSjku eSaus fdlh izdkj ds vkns'k xsV [kksyus ds fy, Jh oekZ vFkok vU; fdlh flD;wfjVh LVkQ dks ugha fn;s A eq>s vkSj dqN ugha dgukA ...... "
I have given my anxious thoughts to the arguments advance by counsel for the parties and have also perused the record. The Labour Court has considered the statement of Sri Ram Kumar Gupta, Joint Manager (Administration) and has held that though Sri Ram Kumar Gupta has denied in his evidence and in cross examination that he had given any direct order to open the Vicker gate but this much is clear that he had telephonically instructed the workman to let out two persons, if possible.
It is apparent from the perusal of the statement of Sri Ram Kumar Gupta that he had given order to the workman to use his discretion to let out the persons carrying mail. Though, specific orders were not issued but desire was conveyed to the workman to let out the two persons. Once a person has been authorized to exercise discretion to act in a certain manner and in a certain situation, it cannot be said that he has disobeyed the order or committed any misconduct or security lapse. The contention of counsel for the petitioner that workman could also have asked his superior officer, who was available nearby, has no force as the workman had been given direct order by the Joint Manager (Administration) who was superior to Senior Officer (Security). It also appears from a perusal of the award that this was not the first time that the workman let out the two persons by opening the Vicker gate but, two workmen along with one Vinod Majhi had also been allowed to go from the Vicker gate prior to the incident on the same day and the leaders of the workers were frequently going in and out from the viker gate. Thus, it cannot be said that the workman had not exercised his discretion in proper manner as earlier also, no workman had entered from the Vicker gate when some persons were allowed to cross the gate. Since two or three workers suddenly entered the gate when it was opened to let out the persons on the instructions of his superior officer, the punishment of termination from service was too harsh, the Labour Court has rightly interfered in the facts and circumstances of this case awarding stoppage of one increment from punishment of termination of services.
The contention of counsel for the petitioner that respondent no. 4 was not a workman has no force. A perusal of Annexure C.A 2 to the counter affidavit filed by the respondent no. 4 reveals that in the hierarchy of the Security Department of the Mills is as under:-
Head of Security
Senior Officer (Security)
Thus, Security Inspectors are the lowest persons in the hierarchy. The duties being performed by the Shift Inspectors are also quoted in the body of this judgement and a perusal of the same clearly establishes the fact that neither they nor Security Inspectors discharge supervisory or managerial duties. It is evident from record that they can neither grant leave to subordinate staff nor can take any disciplinary action against any person. It is also evident from the record that the duty of the workman was to open the gate for egress and ingress of the authorized persons under the instructions of Senior Security officers and Administrative Officers, as such, he was a workman. The submission of counsel for the petitioner that since the respondent no. 4 was recipient of more than Rs.6000/- as wages, he is not a workman within the meaning of Section 2(z) of the U.P. Industrial Disputes Act, 1947 cannot be accepted is irrelevant in view of his nature of work which was not supervisory.
The workman had acted under the orders of superior officer, i.e., Joint Manager (Administration) who was also superior to Sri V.K.Gupta. He had exercised his discretion in the matter of opening the Vicker gate having been asked by the Joint Manager (Administration) to let out two persons, if possible. He was the best person, present at the spot, to have exercised his discretion. It has come on record as a matter of fact that earlier also, he had opened the Vicker gate twice or thrice on the instructions of higher officers to let out persons from inside the factory premises and the leaders of the workmen had frequent egress and ingress from the gate but no worker had entered the gates then. The incident, happened was sudden when 2-3 persons came inside the gate. They were prevented from reaching administration block by the workman and other guards. The workman had been awarded the punishment of termination of his services on an assumption of huge loss that may have been caused to the company had there been any untoward incident. The apprehension appears to have been blown out of proportion by the employers to justify their action. The finding of fact has been recorded by the Labour Court that the respondent no. 4 is a workman and that the punishment awarded to him was highly disproportionate and shocking. The findings are not perverse and they are based on appreciation of evidence. There is no illegality or infirmity in the impugned award.
For the reasons stated above, the conclusion arrived at by the Labour Court is not perverse or arbitrary. No interference is required in the findings of fact recorded by the Labour Court by this court in extraordinary exercise of power under Article 226 of the Constitution of India.
For the reasons stated above, the writ petition fails and is accordingly dismissed without any order as to costs.
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