SBCWP NO.5509/95. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.5509/1995. Hindustan Copper Ltd. Khetri Vs. Shri Sangram Singh & Anr. Date of order : September 8, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri A.K. Bhandari for the petitioner. Shri Vigyan Shah Amicus Curiae. Shri R.P. Garg for the respondent-workman. ****** BY THE COURT:- Reportable This writ petition has been filed by the petitioner against the award dated 22/3/1995 passed by Labour Court, Jaipur by which, removal of the respondent-workman has been held to be illegal and petitioner has been directed to be reinstated in service with continuity with 50% back wages. SBCWP NO.5509/95. 2 2) Factual matrix of the case is that respondent workman Sangram Singh was employed with the petitioner as Ferro Printer in Geological Wing of Kolian Copper Mines of Khetri Copper Complex. He was allotted Quarter No.F-39, Sector III-A in Khetri Nagar Township. Petitioner company has launched scheme for its employees known as “Children Education Allowance”. According to the rules, Children Education Allowance is admissible to an employee if his child is studying in the place which is situated 8 kms. away from the posting place or residence of the workman. According to the petitioner-company, respondent-workman claimed such allowance by giving false declaration that he is residing in Quarter No.F-39, Sector III-A whereas he was actually residing in his own house in Khetri Nagar with his four children. Respondent workman received Rs.2335/- per month for the period from July 1971 to December 1979 as children education allowance. A charge-sheet was issued to the respondent on SBCWP NO.5509/95. 3 9.2.80/23.2.80 for different charges. Respondents submitted reply thereto on 29/2/1980. Petitioner management was not satisfied with the reply of the respondent therefore decided to hold enquiry. It appointed enquiry officer vide order dated 23/3/1980. Enquiry officer in his report found the charges proved against respondent No.2. A show cause notice was issued to the respondent on 4/8/1999 proposing to inflict penalty of dismissal from service. Respondent filed reply thereto however his explanation was not accepted. Petitioner dismissed the respondent from service vide order dated 25/9/1981. According to the petitioner, since another proceeding was pending before the Industrial Tribunal on a reference case, an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 was filed before the Industrial Tribunal, Jaipur for approval of termination of services of respondent. Industrial Tribunal vide order dated 26/11/1982 granted approval of the action of SBCWP NO.5509/95. 4 the management dismissing respondent from their services. It was thereafter that the respondent workman raised an industrial dispute, reference of which was made to the Labour Court, Jaipur by the appropriate government vide notification dated 15/6/1985 on the question whether dismissal of the respondent from service vide order dated 25/9/1981 was justified and for what relief the workman was entitled to? Learned Labour Court, Jaipur after hearing arguments of the parties vide order dated 2/9/1988 found the domestic enquiry to be fair. Labour Court vide award dated 22/3/1995 reached to the conclusion that removal was not proper and it was excessive and disproportionate to the gravity of charges and his dismissal was declared bad in law and held him entitled to reinstatement in service with continuity and 80% backwages. Rest 20% backwages were directed to be forfeited as penalty. 3) Shri A.K. Bhandari, learned Senior Counsel for petitioner has argued that Labour SBCWP NO.5509/95. 5 Court has committed error of law in setting aside the order of dismissal dated 25/9/1981 and the findings to that effect were unwarranted and uncalled for. Difference in granting punishment on similar charges cannot be a ground for setting aside the order of dismissal holding it discriminatory and violative of Articles 14 and 16 of the Constitution of India. Learned counsel in support of his argument relied on the judgments of Supreme Court in Chairman and Managing Director, United Commercial Bank and others Vs. P.C. Kakkar : (2003) 4 SCC 364, Balbir Chand Vs. Food Corporation of India Ltd. and others : (1997) 3 SCC 371, State Bank of India and others Vs. S.N. Goyal : (2008) 8 SCC 92 and U.P. State Road Transport Corporation Vs. Vinod Kumar : (2008) 1 SCC 115. Learned counsel further argued that there can be no comparison between the case of the respondent and that of the other two workmen because such workmen when served with the SBCWP NO.5509/95. 6 similar charge sheet, admitted their guilt whereas, respondent denied the charge and refused to deposit the amount. Domestic enquiry was held to be fair by the labour court itself. In the circumstances therefore, Labour Court could not have compared the case of the respondent-workmen (Kanhaiyalal Jaldar and Madan Singh Sotha) with those workmen who deposited the amount. Learned counsel for the petitioner submitted that while passing the impugned award, Labour Court did not at all consider this aspect of the matter that respondent was not residing in the accommodation of the company and in fact he had sublet the same to another person. It is further submitted that once the Tribunal granted approval of dismissal under Section 33 (2)(b) of the Industrial Disputes Act, 1947, Labour Court therefore cannot reverse the finding of the Tribunal on unjustified ground of discrimination. It is argued that the Labour Court in the Scope of the powers vested in it under Section 11A of the Act, make SBCWP NO.5509/95. 7 interference in quantum of punishment only if it was found to be excessive looking to the gravity of the charges proved. Charges against the respondent were fully proved. It is therefore prayed that the writ petition be allowed and the award of the Labour Court, Jaipur be quashed and set-aside. 4) Arguments in the present case were heard earlier. Shri Vigyan Shah, learned counsel for respondent appeared as amicus curiae to assist the court. Subsequently, Shri R.P. Garg, learned counsel appeared on behalf of the respondent workman. Since Vakalatnama of Shri R.P. Garg was filed but his name was not shown in the cause list, therefore he was allowed to make submissions. The matter was thereafter reheard and Shri R.P. Garg, learned counsel for respondent-workman was allowed to make his submissions. 5) Shri Vigyan Shah, learned amicus curiae submitted that provisions contained in Sections 33 of the Act of 1947 provides that during the pendency of any conciliation SBCWP NO.5509/95. 8 proceeding before an arbitrator or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal, in respect of an industrial dispute, no employer shall - (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding in pending whereas Section 10 of the Act of 1947 provides for making of reference of industrial dispute either to the Boards, Courts or Tribunals. It is contended that even after approval of the dismissal by the Industrial Tribunal, appropriate government is not divested its power under Section 10 of the Act. Learned SBCWP NO.5509/95. 9 counsel in support of his submission relied on the judgment of Supreme Court in Punjab National Bank Ltd. Vs. All India Punjab National Bank Employees' Federation and another : AIR 1960 SC 160 and constitution bench judgment of Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and others : (2002) 2 SCC 244. Learned counsel submitted that the fact that the respondent did not plead guilty and insisted for full fledged domestic enquiry, cannot be taken as a factor against him for not invoking Section 11A of the Act. In support of his argument, learned counsel for petitioner has placed reliance on the judgment of Apex Court in TATA Engineering & Locomotive Co.Ltd. Vs. Jintendra PD. Singh and another : (2001) 10 SCC 530 and argued that Supreme Court in that case upheld the argument of discrimination and also the judgment of the High Court which interfered on the quantum of punishment finding that three workmen, found guilty of SBCWP NO.5509/95. 10 misconduct in connection with same incident, notwithstanding separate disciplinary proceedings, they ought to be awarded identical penalty. 6) Shri R.P. Garg, learned counsel appearing for the respondent workman has argued that Labour Court has in the present matter rightly interfered with the quantum of punishment because on evidence it was proved that petitioner management has dealt with the co-workers of the respondent, Kanhaiyalal Jaldar and Madan Singh Sotha, rather leniently for the same misconduct therefore petitioner has committed misconduct, they were awarded penalty of stoppage of one annual grade increment and were required to deposit the children education allowance received by them. Learned counsel argued that receipt of children education allowance by the respondents cannot be said to be an act of embezzlement and therefore the judgment cited by the learned counsel for the petitioner especially in UPSRTC Vs. Vinod Kumar supra can SBCWP NO.5509/95. 11 hardly have even application in the present case. It is contended that this court in exercise of its power of judicial review under Articles 226 & 227 of the Constitution of India can interfere with the quantum of punishment if discrimination is proved to its satisfaction that different employees have been awarded different penalties on the same set of charges. Learned counsel in support of his arguments relied on the judgment of Supreme Court in Sengara Singh and others Vs. The State of Punjab and others : AIR 1984 SC 1499. Learned counsel submitted that Labour Court has rightly interfered with the quantum of punishment and in doing so, substituted dismissal of service by forfeiture of 20% of the back wages as penalty. It is contended that in certain circumstances, withholding of portion of back wages can also be taken as a penalty by itself and separate penalty need not be imposed. It is contended that petitioner management having awarded lesser penalty to other workmen cannot be now allowed SBCWP NO.5509/95. 12 to contend that such penalty upon those employees was imposed by mistake and therefore there cannot be any basis for an argument of the learned counsel for petitioner. It is contended that the respondent having attained the age of superannuation already stood retired on 30/11/1987 and it is now only the monetary benefits which he wanted to receive if eventually award passed by the Labour Court is upheld. 7) I have given my anxious consideration to the rival submissions of the parties and perused the order of the Industrial Tribunal and award passed by the Labour Court, Jaipur. 8) First and the foremost argument is that in view of the approval granted by the Industrial Tribunal under Section 33(2)(b) is whether the appropriate government was precluded from making a reference of the industrial dispute in exercise of the powers conferred under Section 10A and whether the order of approval passed by the Industrial Tribunal could be construed as res judicata or SBCWP NO.5509/95. 13 otherwise as a bar for the Labour Court to adjudicate the reference made to it on merits. Supreme Court in Punjab National Bank supra has succinctly discussed the object of Section 33 of the Act. It was observed that Section 33 means to provide that During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before 2* [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall -- discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute save with the express permission in writing of the tribunal. In para 25 of the judgment, Apex Court held that even if the requisite permission is granted to the employer under Section 33, that would not be the end of the matter. It is not as if the permission granted under Section 33 validates the order of dismissal. It merely removes the ban; and so the validity of the order of dismissal still can be, and often is, SBCWP NO.5509/95. 14 challenged by the Union by raising an industrial dispute in that behalf. The effect of compliance with the provisions of Section 33 is thus substantially different from the effect of compliance with Section 240 of the Government of India Act, 1985, or Article 311 (2) of the Constitution. Approval of dismissal by the Industrial Tribunal thus merely enables the employer to make an order of dismissal and thus avoid incurring the penalty imposed by Section 31(1). But if an industrial dispute is raised about validity of such a dismissal, the order of dismissal passed even with the requisite permission obtained under Section 33 has to face the scrutiny of the tribunal. I am fortified while taking of this view also by co-ordinate bench judgment of this court in Amar Singh supra. 9) Adverting now to the argument that lesser penalty was awarded to two other workmen Kanhaiyalal Jaldar and Madan Singh Sotha, cannot be a reason to annul the penalty qua dismissal awarded to the respondent SBCWP NO.5509/95. 15 workman on the ground of penalty, I find that even the petitioner does not dispute that Kanhaiyalal Jaldar and Madan Singh Sotha also likewise received children education allowance and were also served with the charge sheet. What has been stated is that they immediately tendered apology and assured of good behaviour in future and therefore they were awarded penalty of stoppage of one annual grade increment and were required to refund the amount of children education allowance whereas respondent was throughout taking the children education allowance as a matter of right whereas he was not entitled to receive the same. Rather, he did not tender apology for the same. Labour Court on that basis proceeded to hold action of the petitioner as illegal and has interfered with the quantum of punishment awarded to the respondent workman. In Chairman and Managing Director, United Commercial Bank supra judgment of Supreme Court relied on by the petitioner, Supreme Court held that court should not normally SBCWP NO.5509/95. 16 interfere with the employer'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 that case, High Court did not assign any reason as to how and why it found the punishment shockingly disproportionate. It was therefore held that even if a co-delinquent is given lesser punishment, it cannot be a ground for interference. Even such a plea was not available to be given credence as the allegations were contextually different. It was a case in which the bank officer was charged with allegations of making fictitious entries and a criminal case was also registered against him. It was held that a bank officer is required to exercise higher standards of honesty and integrity. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, SBCWP NO.5509/95. 17 devotion and diligence and to do nothing which is unbecoming of a bank officer. 10) In Balbir Chand supra, it was observed by the Apex Court that a different penalty cannot be claimed even if lesser penalty has wrongly awarded to another officer. In that case also, petitioner was working as Manager in the Food Corporation of India. One person Rajinder Singh Rana impersonating himself as and Harjeet Singh S/o Ajit Singh had succeeded in obtaining a contract with the Corporation for the year 1992-93 for transportation of foodgrains. Petitioner's duty was to verify the particulars furnished with the tender and to submit the same to the competent authority for taking decision. Petitioner made a favourable report without fully verifying the documents. On the basis of the allegation made by the petitioner, contract was awarded to Rajendra Singh Rana, who impersonated as Harjit Singh S/o Ajit Singh. Subsequently, it was discovered some other Rajendra Singh Rana misappropriated 1400 MT of superfine rice SBCWP NO.5509/95. 18 delivered to him for transportation ex-Khanna to Assam by road. On the charges being proved against the petitioner, he was removed from service whereas certain other officials involved who approved the award of contract, were awarded lesser penalty in separate departmental enquiry. Apex Court observed that merely because one of the officers was wrongly given the lesser punishment compaired to other, against whom there is a proved misconduct, it cannot be held that they too should also be given the lesser punishment lest the same mistaken view would be repeated. 11) Similarly in the judgment of UPSRTC supra, Supreme Court while dealing with a case of bus conductor who was carrying 28 passengers without ticket having already collected fair from them. In those facts, it was held to be a charge of misappropriation and the Supreme Court held that punishment of removal/dismissal from service awarded by the punishing authority, is the appropriate punishment for an employee found guilty of SBCWP NO.5509/95. 19 misappropriation of funds and the courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. 12) In S.N. Goyal supra also, the allegation against the employee is of misappropriation of customers' money and therefore it was held that manager of a bank is expected to act with absolute integrity and honesty in handling customers/borrowers' money. Misappropriation by an employee even if as a temporary measure, is a serious misconduct. Interference in the punishment awarded by the employer ought not to be made by the High Court. These two questions can hardly any application to the present case because here the allegation is of misappropriation of government fund or that he was not working in a fiduciary capacity which a bank manager or bus conductor works. Here the facts are that respondent workman received children education allowance from the petitioner management in the sum of Rs.2335/- per month for the period from July 1971 to SBCWP NO.5509/95. 20 December 1979 and the management contends that that he was not eligible to receive such allowance because his children was not residing away from him and were residing in a same town. It is not in dispute that same charge was there against other two employees Shri Kanhaiyalal and Madan Singh Soda. Departmental enquiry was proposed to be initiated against them but they accepted their guilt and therefore petitioner did not hold departmental enquiry and they were awarded penalty of stoppage of one annual grade increment and they deposited the amount. Fact that petitioner did not plead guilty and demanded a fullfledged enquiry did not in any manner enhance gravity of the charge against him because even if ultimately the charge was proved against the respondent in the departmental enquiry, it would be same charge which was proved against other two co delinquents. In case, reliance is placed by the learned counsel for the petitioner, especially in Chairman and Managing Director, SBCWP NO.5509/95. 21 United Commercial Bank supra, such was not the plea set up by the employer before the court. 13) Supreme Court in TATA Engineering & Locomotive Co.Ltd. supra, was dealing with a case where three workmen were found guilty of misconduct in connection with the similar incident. One of them was terminated from service whereas another was reinstated pursuant to the court order. In that situation, Supreme Court held that even though they were found guilty in certain proceedings in connection with the same incident, one of them punished with one month's suspension and another reinstated pursuant to court's order, in such circumstances, notwithstanding that they were found guilty in separate proceedings, singling out the third one for punishment of dismissal rightly held by High Court as amounting to denial of justice. 14) In Sengara Singh supra, the State of Punjab initiated an action against several employees of the police force and dismissed about 1000 employees on the ground that they SBCWP NO.5509/95. 22 participated in the agitation. Some of the members of the police force, who were dismissed from service, filed writ petitions in Punjab & Haryana High Court, which were dismissed. Thereafter, the State Government on its own withdrew cases pending against them. A committee was constituted by the government to review cases of their dismissal and on recommendation of such committee, out of 1100 employees, 1000 employees were reinstated and rest filed applications. Those, who were thus weeded out by the Committee, filed writ petitions in the High Court. Supreme Court held that “order of High Court dismissing the petitions was liable to be quashed. Logically, the petitioners must receive the same benefit which those reinstated received to the absence of any distinguishing feature in their cases”. In the present case also, respondents shall have to show any distinguishing feature so as to warrant a different treatment meted out to the respondent workman. Merely because respondents did not plead guilty and insisted SBCWP NO.5509/95. 23 upon holding of departmental enquiry, cannot be an additional reason to award him penalty. 15) Supreme Court judgment which has been relied on by the learned counsel for petitioner in Balbir Chand and Chairman and Managing Director, United Commercial Bank supra are distinguishable on facts. 16) Coming now to the argument that withholding of 20% of the backwages cannot be taken as a penalty and if at all Labour Court wanted to interfere with the quantum of punishment, it should have awarded some penalty to the workman as was done by the management in the case of other two workmen. I find that while stoppage of one annual grade increment was awarded in the case of two workmen with direction them to refund the amount of Rs.360/- and Rs.710/- from Madan Singh Soda and Kanhaiya Lal Jaldar, respectively, the Labour Court has in the present matter substituted the order of penalty of dismissal by stoppage of 20% of the backwages of the respondent-workman. SBCWP NO.5509/95. 24 17) In Jitendra Singh Rathor Vs. Shri Baidyanath Ayurved Bhawan Ltd. and another : AIR 1984 SC 976, Supreme Court held that "in our opinion, the High Court was not right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty." In this matter, withholding of 20% of the backwages by way of penalty cannot be valid. Since the respondent workman has long back attained the age of superannuation and thus would be taken as retired from the services of the petitioner on 30/11/1987, there would be no necessity for giving directions to the petitioner to reinstate the respondent-workman in service and he would merely receive benefits as per award passed by the Labour Court. The writ petition is accordingly dismissed. There shall be no order as to costs. (MOHAMMAD RAFIQ), J. anil