Civil Writ Petition No.8559 of 1988 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Writ Petition No.8559 of 1988 Date of Decision:23.10.2008 Punjab State Cooperative Supply and Marketing Federation Limited, Sector 17, Chandigarh .....Petitioner Vs. The Presiding Officer, Labour Court, Gurdaspur and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Munishwar Puri, Advocate for the petitioner. None for respondent No.2. **** HARBANS LAL, J. This judgment shall dispose of Civil Writ Petition No.8559 of 1988 moved by the Punjab State Cooperative Supply and Marketing Federation Limited (hereinafter to be referred as `the MARKFED') under Articles 226 and 227 of the Constitution of India for quashing the impugned award dated 6.4.1988 (Annexure P.3) as well as Civil Writ Petition No.3770 of 1989 filed by Joginder Singh (Hereinafter to be referred as `the workman') under Article 226 of the Constitution of India for setting aside part of the award dated 6.4.1988 (Annexure P.1) vide which the Labour Court has directed MARKFED to pay back-wages to him (Joginder Singh) with effect from 6.3.1984 and not from 25.4.1980, the date of termination of his services. The facts as garnered from Civil Writ Petition No.8559 of 1988 are that Joginder Singh, workman was employed in the year 1969 as a Manager `B' Grade. While working as such at Gurdaspur, he was issued a show cause notice in August, 1974 for having misconducted himself. As a Civil Writ Petition No.8559 of 1988 -2- result of which, the MARKFED suffered huge losses. The explanation furnished to the show cause notice by him was not found satisfactory. So, a regular domestic inquiry was ordered after serving a charge-sheet on him. Shri K.N. Chopra, Enquiry Officer after holding a fair and proper inquiry held that the charges levelled against the workman stood proved. The inquiry report was placed before the Administrator who was then performing the functions of the Board of Directors of MARKFED as well as of the Administrative Committee. After considering the inquiry report, dismissal order dated 25.4.1980 was passed. The workman having been dismissed from service on account of misconduct after a fair and proper domestic inquiry possibly had no dispute much-less an industrial dispute but he raised a dispute under the Industrial Disputes Act, 1947 (for short, `the Act'). The reference was made to the Labour Court, Gurdaspur. The following issues were framed:- 1. Whether Shri Joginder Singh is not a workman as alleged? OPR 2. Whether the statement of claim filed by the workman is not entertainable as alleged? OPR 3. Whether a valid departmental enquiry was held against the workman? 4. Whether termination of services of the workman is justified and in order? 5. Relief. After hearing the respective representatives of the parties and examining the evidence on record, the learned Presiding Officer, Labour Court, Gurdaspur directed MARKFED to reinstate the workman with Civil Writ Petition No.8559 of 1988 -3- continuity of service and full backwages with effect from 6.3.1984 till reinstatement. Feeling aggrieved with the award dated 6.4.1988, the MARKFED has filed the above referred petition. The workman feeling aggrieved with the withholding of back-wages from 25.4.1980 till 5.3.1984 preferred the above mentioned petition. I have heard the learned counsel for the MARKFED, besides perusing the findings returned by the learned Presiding Officer, Labour Court with due care and circumspection. None has put in appearance on behalf of the respondent- workman. Mr. Munishwar Puri, Advocate on behalf of MARKFED maintained with great eloquence that the Labour Court ought to have conducted the inquiry itself if the same was held by an incompetent person by allowing the parties to lead fresh evidence with regard to the misconduct alleged against the workman. It is well settled principle of law that the order of termination passed by the Management is not vitiated merely because the inquiry held was not fair and proper. Where the employer makes a request to lead evidence with regard to the alleged misconduct, the Labour Court has no choice but to hold an inquiry itself. The Labour Court has failed to exercise its jurisdiction in this regard. The Managing Director who initiated punitive action against the workman was fully competent to do so in view of the authority delegated to him by the Administrative Committee. The Administrator who terminated the services of the workman was performing the functions of the Board of Directors as well as of the Administrative Committee. As such, the order is valid. Shri. J.N.L. Srivastava was the Administrator appointed by the Additional Registrar exercising the powers of Registrar Cooperative Societies under Section 26 Civil Writ Petition No.8559 of 1988 -4- (1D) of the Punjab Cooperative Societies Act, 1961. Thus, he had the powers to perform all or any of the functions of the Board of Directors, or Committee or any Officer of the Society and also had the power to take all such actions as were required in the interest of the Society. Lastly, he submitted that the Labour Court has gravely erred in passing the impugned award. To buttress these stances, he has sought to place abundant reliance upon the observations rendered in re: The Chartered Bank, Bombay v. The Chartered Bank Employees' Union and another, AIR 1960 Supreme Court 919 and The Management of Murugan Mills Limited v. The Industrial Tribunal, Madras and another, AIR 1965 Supreme Court 1496. Arguendo, Mr. Puri did not draw attention towards any rule envisaging that if the inquiry is found to be unfair and improper, the Labour Court is bound to hold it afresh. In re: The Chartered Bank, Bombay (supra), the Apex Court has held that “The Industrial Tribunal can go behind the form of the order and see whether it is a mere camouflage for a dismissal for misconduct without following the prescribed procedure. Where the termination of service is capricious, arbitrary or unnecessarily harsh on the part of the employer judged by normal standards of a reasonable man that may be cogent evidence of victimsation or unfair labour practice.” In re: The Management of Murugan Mills Limited (supra), it has been held that “that the form used in the present case for terminating respondent's services under cl. 17(a) was not conclusive and the tribunal was justified in enquiring into the reasons which led to such termination; even the Standing Orders provide that an employee can ask for reasons in Civil Writ Petition No.8559 of 1988 -5- such a case. On the reasons given the termination clearly amounted to punishment for misconduct and, therefore, to pass an order under cl. 17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provision of the Standing Orders. In those circumstances the tribunal would be justified in going behind the order and deciding for itself whether the termination of the respondent's services could be sustained.” A careful study of facts of both these authorities would reveal that it has nowhere been laid down therein that if an inquiry is found to be not fair and proper, the Presiding Officer of the Labour Court is obliged to hold the same. Sometimes, the employer without holding domestic enquiry pass the order of dismissal/ termination concealing the reasons therefor. In such circumstances, the Tribunal/ the Labour Court can go into the background of such order. These authorities in no way fortify the contention of Mr. Puri that the Labour Court itself should hold the enquiry. In the impugned award dated 6.4.1988, the learned Presiding Officer, Labour Court has observed as under:- “11. There is no denying the fact that according to Common Cadre Rules the Appointing Authority of the workman was Administrative Committee and Shri T.C. Nagpal the learned representative of the respondents fairly conceded this position. The dismissal order Ex.M.10 purports to have been issued by the Administrator of the Federation and not by the Administrative Committee. Shri Nagpal submitted that the Administrative Committee was not in existence at the time of passing Civil Writ Petition No.8559 of 1988 -6- of the order and that the Administrator of the Federation and not by the Administrative Committee. Shri Nagpal submitted that the Administrative Committee was not in existence at the time of passing of the order and that the Administrator exercised the powers of the Administrative Committee. However, it has not been shown if Shri J.N.L. Srivastava had in fact been appointed as Administrator or the powers of the Administrative Committee had been conferred on him. Shri Surinder Datta, the only witness examined by the respondent, stated in his cross-examination that there is no resolution in the minute book regarding the appointment of any Administrator. He was also unable to tell if the Administrative Committee has ceased to exist or had been suspended or had been superseded because he could not find any resolution to that effect. He also could not lay his hands on any resolution if the Board of Directors has ceased to functioning. In the circumstances, it cannot be said if the dismissal order had been passed by a competent authority. Even the show cause notice had been issued on behalf of the Managing Director who was also not the Appointing or Dismissing authority. There is no charge-sheet issued to the workman. Certainly, there is nothing on the file to show if any witness was examined by the Enquiry Officer in the presence of the delinquent employees. Civil Writ Petition No.8559 of 1988 -7- All that, Ex.M5 shows that Shri Ram Asra, the Presenting Officer had stated the prosecution case before the Enquiry Officer and on the basis of that statement the case was closed. There is nothing in Ex.M5 to show that Shri Ram Asra was examined on oath or if the delinquent employee was afforded opportunity to cross-examine him. Further it is also not shown if Shri Ram Asra was a proper person to state the facts. No show cause notice was given to the delinquent employee after the Enquiry Officer submitted his report. Even the copy of the findings of the enquiry does not appear to have been furnished to the delinquent employee Shri Nagpal, the Ld. representative of the respondents was unable to say much on these aspects of the enquiry. I am, therefore, of the considered view that the enquiry held against the workman was neither fair nor proper. Reasonable opportunity to defend himself has not been given to him. 12. The enquiry was also bad-in-law because it had been initiated by an authority who was not competent to do so. The dismissal order had also been passed by the authority who was not competent to do so. Thus, the enquiry was vitiated and the dismissal order was unsustainable in law. The issue is determined against the respondents.” In re: Mr. Bhupinder Singh and others v. The State of Civil Writ Petition No.8559 of 1988 -8- Punjab and others, 1986(1) Punjab Law Reporter 68, a full Bench of this Court held as under:- “that there is no dispute that under Rule 1.4, the Board was competent to take a decision regarding the abolition of the posts and that such a decision was taken by the Board. The right to terminate the services of an employee is given to the Administrative Committee under Rule 2.10. Thus, it is quite evident that it is the Administrative Committee in which the overall authority vests to administer the Cadre Rules. The Administrative Committee did not at any time take a decision to terminate the services of the petitioners or other employees as a result of the decision of the Board abolishing the superfluous posts, nor the Administrative Committee authorised the Managing Director to issue the impugned order, with the result that the Managing Director could not of his own authority issue the impugned retrenchment order.” “That the Managing Director of a Co-operative Society is its Principal Executive Officer and all the employees exercise their powers and perform their duties under his superintendence and control. The Managing Director exercise his powers and performs his duties under the overall supervision and control of the Committee. But when a Chairman has been appointed, then all powers of the Principal Executive Officer (i.e. the Managing Director) vest in the Chairman and all other employees exercise their powers and perform their duties under the Superintendence and control of the Chairman. Under Rule 80- Civil Writ Petition No.8559 of 1988 -9- C, the Chairman in this limited context is the Principal Executive Officer in the same sense as the Managing Director would have been, had the Government not appointed a Chairman to function as Principal Executive Officer. Under Rule 80-C, the provision that the Chairman with the prior approval of the Registrar may delegate any of his powers to any employee of the Society appears to apply only to the original and inherent powers of the Principal Executive Officer, as indicated in Bye-Law 27 and do not extend to the power that may be delegated specifically by the Administrative Committee. Thus, the Chairman to whom the power had been delegated by the Administrative Committee acted illegally and without jurisdiction in further delegating the powers to the Managing Director. Such delegation by the Chairman did not vest the Managing Director with any authority, nor could he, on the basis of such delegation, issue the order of retrenchment. The services of the petitioners have been terminated clearly in violation of the Rules and they can certainly enforce their right which has been affected adversely, by invoking the jurisdiction of this Court under Article 226 of the Constitution.” In view of Mr. Bhupinder Singh and others' case (supra), the Managing Director could not pass the order of termination of the workman. Furthermore, the Chairman cannot delegate the powers to the Managing Director. Thus, there is no escape from the finding that the services of the workman have been terminated clearly in violation of the Civil Writ Petition No.8559 of 1988 -10- rules. That being so, he can certainly enforce his right which has been affected adversely. The threadbare discussion held by the Presiding Officer, Labour Court with regards to the competency of the authority which initiated the inquiry and passed the dismissal order, on the face of it warrants no interference. Coming to the plea of the workman that back-wages should have been allowed to him with effect from 25.4.1980 instead of 6.3.1984, it is worth pointing out here that as a matter of fact he served the demand notice on 6.3.1984. As such, his plea in this behalf is unsustainable. There is nothing wrong with this finding. Vide order dated 23.9.1992 passed by this Court in C.M. No.1763 of 1992 in this Writ Petition, the MARKFED was directed to pay to the workman- respondent, current wages that are admissible to the workman employed in the same post from the date of the award. As reflected in this order, Mr. Munishwar Puri, Advocate had contended that it shall be open for the Management to take work from the workman. Statedly, the respondent- workman has been reinstated. In view of the above discussion, I do not consider it proper to interfere in the impugned award in exercise of writ jurisdiction under Article 226 of the Constitution of India. Thus, both these petitions are dismissed. October 23, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No