C.W.P Nos.9086 & 18122 of 1997 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.9086 of 1997 Date of Decision: 17.07.2009 The Manak Dheri C.A.S.S. Ltd. .....Petitioner Versus Presiding Officer, Labour Court Jalandhar & another ...Respondents Present: Mr. M.K. Tiwari, Advocate for the petitioner. Mr. R.S. Bains, Advocate for respondent No.2. 2. C.W.P. No.18122 of 1997 Gurbax Singh .....Petitioner Versus Presiding Officer, Labour Court Jalandhar & another ...Respondents Present: Mr. Amarjit Singh, Advocate for Mr. R.S. Sharma, Advocate for the petitioner. Mr. M.S. Kang, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. By the award dated 11.02.1997, Manak Dheri Cooperative Agricultural Service Society Ltd. was directed to reinstate its workman finding that the termination which was made on 25.09.1990 was against the law and also granted the workman 60% back wages. C.W.P Nos.9086 & 18122 of 1997 -2- The workman filed his own writ petition in C.W.P. No.18122 of 1997 against the very same award complaining against restricting the benefit to 60% of wages only and seeking for full back wages. 2. The order of termination was originally effected against the workman on the alleged ground that there had been misappropriation when he was working as a Salesman in the petitioner-society. By a resolution of the society he was terminated, against which, the workman had filed an appeal to the Deputy Registrar. The appeal was under the Punjab State Cooperative Agricultural Service Society Service Rules, 1997 (hereinafter referred to Service Rules, 1997). His challenge to the order was that no enquiry had been conducted and it was against the relevant rules. The Deputy Registrar, however, rejected the appeal and held that there had been several instances when the workman was found tampering with the records of the society and that he had been warned at several times to improve his conduct. The workman was alleged to have caused loss to the society by keeping essential commodities stock unauthorizedly. The Deputy Registrar took note of the fact that the Secretary of the Society was still complaining before him that amounts were due from him. Agreeing with the arguments advanced on behalf of the society, appeal filed by the workman was rejected. It could be noticed that the Appellate Authority (Deputy Registrar) did not consider the core point of dispute that the penalty of removal from service had been made without any enquiry, when the Appellate Authority was dealing with communications and notices sent to the workman complaining of misconduct prior to termination of service. The complaint regarding C.W.P Nos.9086 & 18122 of 1997 -3- misconduct or warnings against workman for improving conduct could be instances where in the perception of the management there was misconduct but what the law required is specified under Rule 14 (ii) of Rules, 1986. While Rule 14 describes the penalties that could be visited on the workman as a major punishment as well as a minor punishment. Before inflicting major or minor punishment to an employee, Rule 14(2) is requires: “No order imposing any of the penalties specified in sub rule (i) shall be passed except after giving written notice to the employee about the charge or charges levelled against him and after giving him an opportunity to represent his case within 15 days from the receipt of notice to be served on him.” 4. Rule 14 (3) states in the case of inflicting major punishment as enumerated in sub rule I (ii) above, inquiry proceedings have to be initiated giving him reasonable opportunity to represent his case as per the details given below:- “Notice in writing to the employee by the competent authority enumerating therein the charge/charges levelled against him shall be given with a direction to represent his case in writing within 15 days from the receipt of notice. After representation from the employee is received the competent authority shall consider this representing in the light of charges levelled against him. If after consideration of representation competent C.W.P Nos.9086 & 18122 of 1997 -4- authority reaches at a conclusion that the reply of the employee is not satisfactolry then he shall appoint some person as enquiry officer and another person as presenting officer. The concerned employee shall be informed about the appointment of enquiry officer and presenting officer. The Enquiry officer shall hear the case by affording opportunity of hearing to the concerned employee. The Presenting Officer shall put forth the case of the Society to the Enquiry officer. Copies of all the documents relied upon in the enquiry shall be given to the concerned employee. The Enquiry Officer shall submit the report to the competent authority and competent authority after considering the report if reaches at a conclusion that some major penalty is required to be inflicted on the employee shall give a notice to the concerned employee proposing there in the penalty to be inflicted on the employee and to give him an opportunity to represent within a period of 15 days as to why this penalty should not be inflicted upon him. After the expiry of 15 days and after considering the reply of the employee, if received, the competent authority shall pass the orders of inflicting of major penalty on the employee. The order of infliction of major penalty on employee shall be communicated to him immediately.” 5. It can be seen that Rule 14 contains elaborate procedure that C.W.P Nos.9086 & 18122 of 1997 -5- includes service of charge-sheet, appointment of Enquiry Officer, conduct of an enquiry and giving opportunity to show cause before a major punishment would be imposed on the workman. The whole procedural requirement is a reflection of the elementary principles of natural justice. All these have been thrown to the winds and the Deputy Registrar has in his decision taken the statement of a Secretary of the society that the workman had been warned at several times as constituting elements of enquiry. The whole proceedings of the Deputy Registrar while disposing of the appeal is travesty of justice that cannot stand a minute's judicial scrutiny. 6. Learned counsel appearing for the society would urge that once an order was passed in appeal by the Deputy Registrar, the only option left for the workman is to take up the challenge by way of revision and he could not have resorted to the Labour Court raising a dispute and seeking for an adjudication before the Labour Court. According to him, an order of termination of service, which was passed by the society and that merged with the order in appeal by the Deputy Registrar could be challenged only by way of revision or by an independent writ petition after exhausting the remedy provided by the rules. Otherwise, according to him, it could result in a situation of two divergent orders as it has happened in the case of Labour Court rendering a direction for reinstatement and the Appellate Authority affirming the decision of dismissal. The provisions of the Cooperative Societies Act and the Service Rules are complete in themselves and they exclude the operation of the Industrial Disputes Act, 1947, according to the learned counsel for the management. C.W.P Nos.9086 & 18122 of 1997 -6- 7. The reference to the Labour Court came when the workman issued a demand notice and had a reference made through the Government that the proceedings of termination of service by the society and the Deputy Registrar were illegal. The jurisdiction of the Labour Court was itself denied before the Court by the society but still the Court went ahead to find the termination to be bad finding that there had been no enquiry before the termination was effected. The reasoning of the Labour Court itself cannot be challenged as wrong in view of the relevant Rules that I have extracted above. 8. The point for consideration would, therefore, be only whether the Labour Court did not have any jurisdiction to pass the order, the way it did. Learned counsel appearing for the society refers me to the decision of the Hon'ble Supreme Court in R.C. Tiwari Vs. M.P. State Co-op. Marketing Federation Ltd. 1997 AIR (SC) 2652 where the Hon'ble Supreme Court was dealing with a case of a dispute which had been decided under Section 55 (2) of the M.P. Cooperative Societies Act, 1960. The relevant Section referred to an adjudication relating to a dispute regarding management or business of the society. Finding that the term was comprehensive in providing for a special mechanism through an arbitrator to resolve the dispute, the Court found that Section 10 of the Industrial Disputes Act stood excluded. The industrial dispute that the workman raised by complaining of the termination of service cannot be taken to be in the nature of a dispute relating to management or business. It operates completely on a different field. The reference to this judgment shall have absolutely no bearing to a matter relating to termination of service which is C.W.P Nos.9086 & 18122 of 1997 -7- undertaken under the Service Rules. The relevant Service Rule, 1997 itself describes a different procedure than what Section 55 of the Punjab Cooperative Societies Act, 1961. The provisions of the said Act refers to a resolution of dispute by an arbitrator. There is also a provision for an appeal under Section 68 with a right of revision under Section 69. These provisions address different sets of problems namely the dispute relating to management, constitution or business of a Cooperative Society, a la the facts that the Hon'ble Supreme Court was adverting to. The Service Rules, 1997 operates in a mutually exclusive field from what Sections 55, 67 and 60 deal with. 9. The jurisdiction of a Labour Court to adjudicate on a labour dispute relating to termination, in the face of express provisions through service rules of the society cannot be doubted. The question whether the jurisdiction of a Labour Court stands excluded by the Service Rules of Cooperative Society is no longer re integra. The point has been squarely answered by a decision of Full Bench of this Court in Ambala Cooperative Bank Ltd., Ambala Vs. State of Haryana (1993) 2 SCT 310. The point in reference before the Full Bench also subsequently decided by a Division Bench again in The Bhuna Cooperative Sugar Mill Ltd. Vs. Mohinder Singh and another 2000 (3) LSJS 692. 10. Learned counsel appearing for the workman relies on a decision of the Hon'ble Supreme Court in Morinda Cooperative Sugar Mills Ltd. Vs. Morinda Cooperative Sugar Mills Workers Union 2006 6 (SC) 80 that dealt with the right of a workman to resort to a civil action for declaration in the face of express provisions under C.W.P Nos.9086 & 18122 of 1997 -8- the Punjab Cooperative Societies Act. The Hon'ble Supreme Court had held that suit had not been barred by any of the provisions. The point was again referred to in Rajpura Cooperative Marketing Union Ltd. and another Vs. Puran Singh 2005(2) All India Land Laws Reporter 96 where a learned judge of this Court held that the jurisdiction of a Civil Court had not been barred in a matter which was referred to arbitration. These two decisions have no clear bearing to our case. We are not dealing with an issue whether a civil suit challenging an order of termination was possible or not. An industrial adjudication before a Labour Court operates independently. If the two decisions cited by learned counsel for the respondent have any bearing, it is that even when a Civil Court is competent to entertain a suit, when there are express provisions under the Cooperative Societies Act and the Service Rules. The jurisdiction of the Labour Court cannot be excluded on a matter relating to adjudication of industrial dispute that arises by wrongful termination by the management. 11. The decision of the Labour Court setting aside the termination and directing reinstatement is perfectly justified and the writ petition is absolutely without merits. Learned counsel appearing for the workman states that pursuant to the order of reinstatement, the workman had been reinstated but he was still being paid only the last drawn wages and not being paid what other persons doing the same work in the society are being paid. He also refers to the fact that he had independently filed C.W.P. No.2426 of 2003 questioning the conduct of the society but the writ petition came to be dismissed, C.W.P Nos.9086 & 18122 of 1997 -9- observing that the workman will have his remedy only in this writ petition. The independent writ petition, which he has filed in C.W.P. No.18122 of 1997 is a challenge for 40% of the wages that have been disallowed. The conduct of the society, we have observed, betrays acute injustice to the workman. If the order of termination was patently wrong, brought about the instances of the resolution of the society, it was perpetuated by a greater wrong by the Appellate Authority. There had also been no justification in denying to such a workman full wages. The Labour Court was not justified in awarding only 60% of the wages. Even the subsequent conduct of the society in not paying the workman what was justly due to him would vindicate the stand of the workman that the conduct of the society left much to be desired. The workman is entitled to full back wages and the award of the Labour Court is modified setting aside the direction that the workman would be entitled only to 60% of the back wages. On the contrary, the workman shall be entitled to full back wages. The workman shall also be entitled to the shortfall in the wages that has occasioned during the pendency of the proceedings by the society giving to him only the last drawn wages. He shall be entitled to the full wages that is applicable to the persons of his cadre. 12. The writ petition in C.W.P. No.9086 of 1997 filed by the society is dismissed and the writ petition in C.W.P. No.18122 of 1997 filed by the workman is allowed with costs to be paid to the workman assessed at Rs.5,000/- in two sets. (K. KANNAN) JUDGE July 17, 2009 Pankaj*