IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1159 of 1996 Date of decision:05.10.2009 Pfizer Employees Union ...Petitioner versus The Presiding Officer, Industrial Tribunal-cum-Labour Court, U.T., Chandigarh and another. ...Respondents II. Civil Writ Petition No.14502 of 1996 Shri R.L.Arora ....Petitioner versus The Presiding Officer, Labour Court, Chandigarh and another. ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. O.P.Goyal, Senior Advocate with Mr. Varun Sharma, Advocate and Ms.Anjana, Advocate, for the petitioner. Mr. Pawan Kumar Mutneja, Advocate, with Mr. S.S.Sudan, Advocate and Ms. Monika Sharma, Advocate, for the respondent. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. 1. By an award dated 10.08.1995, the Labour Court answered the reference sought through the employees’ Union that the workman shall be restored to the duties as Purchase Assistant in the industrial establishment. Yet another subject of reference namely of a consideration for promotion for the workman as a Purchase Officer was found to be not Civil Writ Petition No.1159 of 1996 - 2 - feasible on a recognition by the Labour Court of the prerogative of the management either to fill up a post on promotion or not. During the pendency of the proceedings, the management had taken independent action for the alleged misconduct of the workman in not doing the duties assigned to him and by its proceedings dated 30.08.1994 directed the discharge of the workman from employment on proof of the alleged misconduct. On the same day, approval had been sought by the management under Section 33(2)(b) of the Industrial Disputes Act for the decision to terminate the services in LCA 52/94. The workman filed application No.61 of 1994 under Section 33-A of the Industrial Disputes Act. The Labour Court accorded the permission sought by the management and dismissed the complaint of the workman. The Civil Writ Petition No.1159 of 1996 contains the challenge by the workman as regards the rejection of the reference for promotion and Civil Writ Petition No.14502 of 1996 contains the challenge against the permission granted by the Labour Court for discharge of the workman for the alleged misconduct as well as the dismissal of the complaint under Section 33-A of the Industrial Disputes Act. The two writ petitions address common question of law and facts and are, therefore, taken up together for disposal with the concurrence of both the counsel appearing on either side. 2. The learned Senior counsel Shri O.P.Goyal, appearing for the workman, would contend that there had been a stated policy of the management pursuant to its talks with the Union that in the matter of promotion to higher posts, the Company would observe that if there had Civil Writ Petition No.1159 of 1996 - 3 - been a promotable man in the department in which vacancy had arisen, there would be no notification of the vacancy as he would become the obvious choice. If there was no such individual available in the department where the vacancy had arisen, then the vacancy would be notified so that any employee who meets with the minimum requirement of the job could compete for it. It also stated that the promotion would be purely on individual’s merit and selection would be fair and judicious as far as possible. The management’s decision in that behalf shall be final. 3. The learned counsel would point out to the situation where in the year 1982 one M.S. Arora, who had been a Purchase Manager, had been transferred to Thane (Maharashtra) and when there arose a vacancy, an Officer from another Branch namely Shri Malhotra had been transferred as Purchase Officer, who held the post till 1987. He was also transferred and Shri Saini from Production Department had been transferred as Purchase Officer. He was also later transferred after few months when one G.D. Sharma had been taken from open market without notification and he continued from July 1992 to December 1992. Shri G.D.Sharma was also later replaced with Saini having been brought back from the place of transfer. The contention of the workman was, therefore, that when there had been admittedly a vacancy, the management was bound to give effect to its own policy to promote him in his capacity as the employee from the Purchase Assistant post. According to him, it was not denied that he was eligible for the post and it was also not denied that there existed a vacancy for the post of the Purchase Officer. Civil Writ Petition No.1159 of 1996 - 4 - 4. The Labour Court had rejected the contention of the workman on the ground that promotion was essentially a matter of management’s policy and merely because a vacancy existed, a workman would not be entitled to be promoted. The Labour Court had brought on record the admission of the management that the management had not promoted any other person within the organization to the post of Purchase Officer, but had merely brought on transfer persons of the same rank from other departments. In my view, the approach of the Labour Court was perfectly justified and the Labour Court had also referred to decisions of the Hon’ble Supreme Court and of this Court to come to the conclusion that a workman was not entitled to demand and secure promotion only because there had been a vacancy in the post. In The Rohtas India Limited Versus The Workman of Rohtas India Limited- 1968 LIC 82, it was held by the Hon’ble Supreme Court that in the absence of clear proof of mala fides or discrimination on extraneous grounds on the part of the management, it would be wholly inappropriate for any outside authority to attempt to weigh the relevant merits of the individual who might be holding the higher post and those who are aspiring for the same. In Brooke Bond (India) Private Limited Versus Their workman-1966-I-LLJ-402, the Hon’ble Supreme Court held that promotion is purely the management’s function though an Industrial Tribunal may interfere on some occasion with promotions made by the management where it is felt that persons superseded had been so done on account of mala fides or victimization. I have already pointed out to the stand of the management that they had not filled up the post at any time Civil Writ Petition No.1159 of 1996 - 5 - and that they had only utilized the services of the person of the same rank from their own establishment to officiate as Purchase Officer. The workman cannot, in my view, therefore have any relief and the rejection of the reference sought on that ground by the Labour Court was perfectly justified. 5. As regards the second prayer that the workman was entitled to be restored in his duties as Purchase Assistant, it was merely a case of the relief, though having been granted to him, came to no benefit for the workman, for, in the meanwhile, the management had terminated the services on the alleged proof of the misconduct attributed to him and he was also discharged from service. It should be noticed even at the outset that the management itself did not question the finding regarding the entitlement of the workman for being restored in his duties as a Purchase Assistant. As a matter of fact, it had conceded even before the Labour Court that they would restore to the workman the duties as Purchase Assistant. Curiously when the concession was made before the Labour Court and when the Labour Court passed its award dated 10.08.1995, the management had already removed him from service on 30.08.1994 and had sought for permission under Section 33(2)(b) of the Industrial Disputes Act for permission to give effect to the order of discharge through an independent application. The workman had also filed a petition under Section 33-A and both the applications were disposed of by the Labour Court subsequently on 04.09.1996. The validity of the permission and the rejection of the application of the workman by the Labour Court by its award dated 04.09.1996, is the subject of challenge Civil Writ Petition No.1159 of 1996 - 6 - in Civil Writ Petition No.14502 of 1996. The focus would have to therefore turn on the conduct of the management in directing the discharge of the workman. 6. The charge-sheet issued against the workman on 28.05.1993 made reference on three incidents i.e. on 06.04.1993, 16.04.1993 and 06.05.1993 when the workman had been directed to do typing work relating to issuance of purchase order, amendment of the purchase order and some other ancillary works. According to the management, the workman was in clear defiance of the instructions of the superiors and refused to do so. His acts constituted, according to the charge-sheet, wilful subordination or disobedience, constituted acts subversive to discipline and further constituted habitual neglect of work or gross habitual negligence, all of which were alleged to be acts of misconducts under the certified Standing Orders applicable to the establishment. The enquiry after the issuance of charge-sheet is said to have resulted in proof of the first charge viz., misconduct of insubordination and he was ultimately served with an order of discharge from service with effect from the date of the letter dated August 24/30, 1994. On the same day along with compensation in lieu of one month’s pay had been given by a pay order as required under Section 33(2)(b) of the Industrial Disputes Act and approval had been sought on the same day before the Labour Court. 7. The learned Senior counsel appearing for the workman would contend that when the dispute was pending before the Labour Court on the reference (which is the subject of adjudication in Civil Writ Civil Writ Petition No.1159 of 1996 - 7 - Petition No.1159 of 1996), it related to two subjects: one, on the issue of entitlement of promotion, and two, for restoration of his duties as an Purchase Assistant. The job profile of an Purchase Assistant included six different type of activities, namely (i) Purchase (ii) Clearances (iii) Despatches (iv) Disposal, (v) Typing, and (vi) General and of which the activity in category (v) namely, Tying consisted of “typing of letters, memos, statements and other correspondence relating to the above jobs.” The restoration of his duties as an Purchase Assistant was the subject of reference which included also the duties of typing in connection with other duties in the purchase department. It was not the contention before the Labour Court that the workman had at all times been assigned the work as Purchase Assistant. In February 1990, when the workman had applied for leave for celebrating his daughter's wedding and when he sought for a small extension of leave, he had been relieved of his duties as a Purchase Assistant, but when he sought the work back, the management did not deny that the work as Purchase Assistant was withdrawn from him. It was, on the other hand, trying to justify the same by stating that it was favouring the workman with lighter duties than burdening him, as alleged to have been assumed by the workman. The grievance of the workman had not been fully redressed and it was only on account of that reference that had been made to the Industrial Tribunal for adjudication. If the misconduct attributed to the workman was that he did not do typing work assigned to him, it was on the basis that the typing was one of the functions as an Purchase Assistant. The misconduct attributed to the workman was directly Civil Writ Petition No.1159 of 1996 - 8 - concerned with the very same dispute, viz.,restoration of his duties as 'Accounts Assistant' which was pending adjudication before the Labour Court. There is distinction between Sections 33(1) and 33(2) of the Industrial Disputes Act by a bare reading of the respective Sections would reveal:- 33 . Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.- (1) During the pendency of any conciliation proceeding before a conciliation officer 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 workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. (underlining mine) (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,-- (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.” (underlining mine) Civil Writ Petition No.1159 of 1996 - 9 - While Section 33(1) would apply in cases where the misconduct attributed to the workman was directly connected with the dispute which is pending, Section 33(2) would apply to a concerned workman whose alleged misconduct was not connected with the dispute which is pending. The misconduct attributed was his refusal to carry out the work of typing, which was one of the stipulated works as an Purchase Assistant. The dispute, which had been referred to the Labour Court and which was pending, was the restoration of his duties as an Purchase Assistant which evidently would include also the duty to do typing in connection with other duties as a Purchase Assistant. In other words, the workman was proceeded against for a misconduct which was directly connected with the relief which he was seeking for restoration of his duties as an Purchase Assistant. In such an event, the discharge itself could not have been made without obtaining previous permission from the Labour Court before which the case was pending. The management was in error in assuming that the misconduct attributed to the workman had no relation to the dispute which is pending before the Labour Court. By proceeding to carry on with the enquiry and passing an order of discharge, it was indeed overreaching the powers of the Labour Court which was adjudging on the same issue of whether the workman was entitled to restoration of his right to the post as an Purchase Assistant. In my view, it would constitute a brazen violation of the Section 33(1) and the attempt of the management to make aright its decision to discharge his services by applying to the Labour Court on 30.08.1994 was illegal and could not validly take effect. It has been held by decision of the Hon'ble Civil Writ Petition No.1159 of 1996 - 10 - Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Versus Ram Gopal Sharma-(2002) 2 SCC 244, that once it was seen that there was a violation of the requirements of Section 33(1) of the Industrial Disputes Act, the order of termination on alleged proof of misconduct connected with the dispute was void and illegal. It must also be noticed that in United Bank of India Versus Sidhartha Chakraborthy-(2007) 7 SCC 670, the Hon'ble Supreme Court even repulsed a contention that the dispensation in Jaipur Zila (supra) was prospective and its ratio will not be applied for decisions of management rendered before the date of the decision of the Hon'ble Supreme Court. In fact, the application under Section 33(2) itself was untenable. The management ought to have applied for previous sanction from the Labour Court before constituting an enquiry or before deciding to discharge the services of the workman under Section 33(1). 8. The learned counsel appearing for the management Shri Mutneja would contend that if there had been any violation, the remedy of the workman would be to apply only for a complaint under Section 33-A of the Industrial Disputes Act. This was precisely what was done by the workman through his application No.61/94. It had been wrongly allowed by the Labour Court. In view of the decision of the Hon'ble Supreme Court in Jaipur Zila (supra) and its ubiquitous applicability to even decisions rendered before the Hon'ble Supreme Court's dispensation, as held in United Bank of India's case even in the absence of petition under Section 33-A, the order of termination by way of discharge was void for want of prior sanction. The writ petition filed Civil Writ Petition No.1159 of 1996 - 11 - by the workman in Civil Writ Petition No.14502 of 1996, under the circumstances, was perfectly tenable and the workman is entitled to succeed and the order of discharge by the management is set aside. 9. It is admitted by the learned counsel appearing for the workman that if the workman had continued in service, he would have been superannuated by now. The relief for reinstatement is, therefore, not possible and the workman shall also be entitled to all the back wages from 30.08.1994 to the date when he would have been superannuated if he had been in service. The terminal benefits would also be reworked on such a basis that he retired in his usual course of his attaining the age of superannuation. 10. The Civil Writ Petition No.1159 of 1996 is dismissed affirming the award already passed by the Labour Court and Civil Writ Petition No.14502 of 1996 is allowed and the order of the Labour Court granting permission for the order of discharge, is set aside with costs assessed at Rs.10,000/- in favour of workman. (K.KANNAN) JUDGE 05.10.2009 sanjeev