Civil Writ Petition Nos.18176 of 1991 & 2634 of 1992 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1. C.W.P. No.18176 of 1991 The Punjab State Coop.Supply & Marketing Federation Ltd.(Management of Markfed) ...Petitioner Versus Ashok Kumar Mehta and another ...Respondents 2. C.W.P. No.2634 of 1992 Ashok Kumar Mehta (Workman) ...Petitioner Versus The Presiding Officer, Labour Court, Bathinda and another ...Respondents Date of decision : 21.03.2011 CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.Sukhdip Singh Brar, Advocate for the Management of Markfed. Mr.Gurbachan Singh Bhatia, Advocate for the workman. Mr.R.S. Rawat, AAG, Punjab for respondent No.2. M ehinder S ingh S ullar, J. (Oral) As identical questions of law and facts are involved, therefore, I propose to decide the above indicated writ petitions, arising out of the same impugned award, by means of this common judgment, in order to avoid the repetition. However, the relevant facts, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petitions, have been extracted from 2nd Civil Writ Petition No.2634 of 1992 titled as “Ashok Kumar Mehta Vs. The Presiding Officer, Labour Court, Bathinda and another” in this regard. 2. Concisely, the facts, culminating in the commencement, relevant for Civil Writ Petition Nos.18176 of 1991 & 2634 of 1992 2 disposal of the present writ petitions and emanating from the record, are that Ashok Kumar Mehta, workman was appointed and was working as a Field Assistant in the year 1981, with Punjab State Cooperative Supply and Marketing Federation (for brevity “the Markfed”). In the wake of heavy rains during the course of harvesting season of Rabi crops, the respective Governments had taken a decision to purchase the entire stock of rain affected wheat, at the fixed rates from the farmers. Consequently, the Markfed has also purchased rain affected wheat in the year 1982-83 as per policy-decision. 3. The Markfed claimed that as there was a shortage of wheat, therefore, Ashok Kumar Mehta workman and his co-employee Roop Singh, were charge sheeted for recording a shortage of 250 Qtls. 92 Kgs. of wheat at the time of delivery to the FCI by way of common charge sheet dated 11.06.1984. (Annexure P-8). After completion of the inquiry, the Inquiry Officer submitted his inquiry report (Annexure P-12) against them. Consequently, the services of workman and his co-employee Roop Singh were terminated by the Markfed. 4. It is not a matter of dispute that the departmental appeal filed by the Roop Singh was accepted by the departmental/appellate authority and ultimately he was reinstated, by virtue of order dated 21.3.1989 (Annexure P18). However, the appeal filed by Ashok Kumar Mehta, workman was dismissed by the Appellate Authority, which necessitated him to raise an industrial disputes, under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred as “the Act”). The appropriate Government referred the matter to the Presiding Officer of Industrial Tribunal and Labour Court, Bathinda (for short “labour Court”). In the wake of the pleadings of the parties, the labour Court framed the following issues for proper adjudication of the case: - I) Whether the reference is not maintainable as alleged in the preliminary objection of the W/S? II) Whether the order to termination of services of the workman is justified and in order? Civil Writ Petition Nos.18176 of 1991 & 2634 of 1992 3 III) Relief. 5. Taking into consideration the entire evidence brought on record by the parties, the Labour Court partly accepted the reference and ordered the reinstatement of the workman with continuity of service but without back wages by means of impugned award dated 22.04.1991 (Annexure P-13), the operative part of which is as under: - “Order of dismissal is modified, Re-instatement of the workman with continuity of service but without back wages is hereby ordered providing that workman shall suffer stoppage of 2 increments with cumulative effect and that he shall also make good 50% of the loss of Rs.6,16,176.57 Ps recovery whereof shall be made by the management in suitable instalments. Reference is answered accordingly. No order as to costs.” 6. Neither the workman nor the management of Markfed felt satisfied and preferred the instant writ petitions, challenging the impugned award (Annexure P-13). That is how I am seized of the matter. 7. As is evident from the record that the first Civil Writ Petition No. 18176 of 1991 filed by the management came up for hearing before a Division Bench of this Court on 09.12.1991 and operation of the impugned award was stayed. After hearing the learned counsel for the parties, order dated 09.12.1991 was made absolute, subject to the provisions of Section 17-B of the Act on 21.02.1992. 8. As the Markfed did not comply with the mandatory provisions of Section 17-B of the Act, therefore, the workman moved an application for dismissal of its writ petition, on account of non-compliance of the order dated 21.02.1992 and Section 17-B of the Act. Although the Markfed/Management has filed the reply to the application raising certain celebrated preliminary objections but the fact remains is that it did not pay the last drawn full wages to the workman, as contemplated under Section 17-B of the Act. 9. Above being the position on record, now the first short and significant question, though important, that arises for determination in this petition Civil Writ Petition Nos.18176 of 1991 & 2634 of 1992 4 is as to whether the writ petitions filed by the Management of Markfed is liable to be dismissed for non-compliance of Section 17-B or not? 10. Having regard to the rival contention of learned counsel for the parties, to my mind, the obvious answer is in the affirmative and to me, its (Markfed) writ petition deserves to be dismissed in this respect. 11. As is clear, Section 17-B of the Act postulates that “where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court: Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.” 12. The conjoint reading of this provision would reveal that Section 17-B clearly mandates the management to pay the full wages last drawn to the workman and non-compliance would entail dismissal of the writ petition. This matter is not res integra and is well settled. An identical question came to be decided by this Court, vide order dated 10.11.2009 in CWP No.11077 of 1995 titled as “The Tauru Primary Coop. Land Development Bank Ltd. Vs. The State of Haryana and others”. After considering the preemptory languages of Section 17-B and the law laid by Bombay High Court in case Chief Engineer, P.W.D. Nagpur and others Vs. P.W.D. S.C., S.T., O.B.C., Employees' Council and another 1995 LAB. I.C. 143, it was ruled that the non-compliance of mandatory provisions of Civil Writ Petition Nos.18176 of 1991 & 2634 of 1992 5 Section 17-B would entail the dismissal of the writ petition of the management. The ratio of law laid down in the aforesaid judgment is fully attracted to the facts of the present case and is the complete answer to the problem in hand. 13. In this manner, it is held that since the Markfed did not comply with the mandatory provision of Section 17-B of the Act, so Civil Writ Petition No.18176 of 1991 filed by it is hereby dismissed, in the present set of circumstances. 14. Now adverting to the second Civil Writ Petition bearing No.2634 of 1992 filed by the workman, again, it is not a matter of dispute that workman Ashok Kumar Mehta and his co-employee Roop Singh were charge sheeted jointly, by virtue of common charge sheet (Annexure P8). Having completed the inquiry, the Inquiry Officer submitted his report (Annexure P12), the operative part of which is as under:- “As has already been discussed earlier in case of main charge sheet, the shortage had occurred due to improper maintenance of health of wheat stocks. However, the fact that the stocks were rain affected at the time of purchase mitigates the seriousness of the charges. Although, the stocks were generally rain affected in the state but such shortages had not been recorded by all the branches, but such shortages had occurred due to improper maintenance of the stocks by the custodians, at certain centres. The case before us is also one of such cases where the custodians failed to preserve the health of stocks properly resulting into the loss to the Organisation on account of shortages recorded at the time of delivery to the Roller Flour Mills/FCI. The charge for the loss on account of difference in price of wheat stocks is not proved. The price of the wheat to be sold is decided at the Head Office level and the respondents cannot be held responsible.” 15. Having completed all the codal formalities of show cause notice etc., the competent authority terminated the services of workman-Ashok Kumar Mehta as well as Roop Singh, vide order dated 27.05.1988. Ultimately, the appeal filed by Roop Singh was accepted and the appellate authority came to the conclusion that the ends of justice would be met by stoppage of two increments with Civil Writ Petition Nos.18176 of 1991 & 2634 of 1992 6 cumulative effect in addition to the recovery of 50% of shortage in suitable instalments, to be determined by the competent authority. The order of dismissal was thus modified and similarly situated Roop Singh, Field Assistant was reinstated into service with immediate effect, by way of order dated 21.3.1989 (Annexure P18). 16. Not only that, during the pendency of instant writ petition, Roop Singh co-employee of present workman Ashok Kumar Mehta preferred a revision petition under Rule 2.17 (e) of Common Cadre Rules and the Additional Registrar, while exercising the power of Registrar, accepted the same and held that there was no justification in affecting any recovery from the employee on account of alleged loss. However, the penalty of stoppage of two increments with cumulative effect was awarded, by way of order dated 9.3.1992 (Annexure P17). In pursuance thereof, the Markfed passed the order dated 23.11.1993 (Annexure P19), which, in substance, is as under:- “In pursuance to the above, the period of suspension of Shri Roop Singh, FO- Grade-II from 2.3.84 to 2.5.86 is hereby treated as leave of the kind due, but he will not be paid anything over and above the subsistence allowance already paid to him during the period of his suspension. Further, the period intervening dismissal and reinstatement shall be treated as period spent on duty for all intents and purposes. However, these orders are subject to the decision of Higher Courts, if any, on the orders of the revisional authority, i.e. Addl. Registrar (Admn.), Cooperative Societies, Punjab, Chandigarh.” 17. In this manner, inviting the attention of the Court towards the orders (Annexures P17 to P19), the submission of learned counsel that since the workman was jointly charge sheeted with his co-employee Roop Singh, so, he is entitled to the same treatment as well, as was awarded to Roop Singh under the same set of circumstances, has considerable force. 18. What is not disputed here is that in the wake of joint inquiry, the services of present workman Ashok Kumar Mehta and his co-employee Roop Civil Writ Petition Nos.18176 of 1991 & 2634 of 1992 7 Singh were terminated. The departmental appeal filed by Roop Singh was accepted. However, the appeal filed by the present workman was dismissed. Roop Singh filed the revision petition, while the present workman availed the remedy under the Act. The Labour Court awarded the same punishment to the present workman, by virtue of the impugned award (Annexure P13) as was awarded to Roop Singh by the appellate authority, by means of order (Annexure P18). The further revision filed by Roop Singh was accepted by the Registrar, Cooperative Societies, vide order (Annexure P17) and set aside the impugned recovery from him on account of alleged loss, but awarded the penalty of stoppage of two increments with cumulative effect. The learned counsel for Markfed has acknowledged that the impugned order (Annexure P17) had attained the finality and was implemented by the Markfed, by virtue of order (Annexure P19). Therefore, to my mind, the workman is also entitled to the same treatment/penalty as was awarded to Roop Singh under the similar circumstances. 19. Ex facie, the argument of learned counsel for Markfed that workman Ashok Kumar Mehta is not entitled to the same treatment as he approached the Labour Court, is not only devoid of merit but misplaced as well. If this argument is accepted, then it will amount to discrimination in awarding the punishment to the present workman for the same misconduct by the same punishing authority and will be violative of Articles 14 and 16 of the Constitution of India, particularly when both the officials contributed equally in their alleged misconduct. Moreover, the same punishing authority (Markfed) cannot legally be permitted to blow hot and cold in the same breath in this relevant connection. 20. Sequelly, this matter can be viewed from a different angle. Once Roop Singh, co-employee of the present workman, was exonerated from recovery, reinstated in service and was only awarded the penalty of stoppage of two increments, then the the present workman is also legally entitled to the same treatment by the same punishing authority on account of same misconduct on the Civil Writ Petition Nos.18176 of 1991 & 2634 of 1992 8 basis of principle of 'stare decisis' and Articles 14 and 16 of the Constitution of India. 21. Again, an identical question came to be decided by the Hon'ble Apex Court in case Saurashtra Cement and Chemical Industries and another etc. etc. v. Union of India and others AIR 2001 S.C. 8. Having considered the various aspects of the matter, it was held that “although the doctrine of 'stare decisis' has no statutory sanction but it is a rule of convenience, expediency, prudence and above all the public policy. It is to be observed in its observance rather than in its breach to serve the people and sub-serve the ends of justice. Taking recourse to the doctrine would be an imperative necessity, so as to avoid uncertainty and confusion, since the basic feature of law is its certainty and in the event of any departure therefrom the society would be in utter confusion and the resultant effect of which would be legal anarchy and judicial indiscipline- a situation which always ought to be avoided.” 22. Likewise, in case Government of Andhra Pradesh and others v. A.P.Jaiswal and others, AIR 2001 S.C.499, it was ruled by Hon'ble Supreme court that “consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the Courts have evolved the rule of precedents, principle of 'stare decisis' etc. These rules and principles are based on public policy and if these are not followed by the Courts then there will be chaos in the administration of justice.” The ratio of law laid down in the aforesaid judgments “mutatis mutandis” is fully applicable to the present controversy and is the complete answer to the problem in hand. 23. Therefore, to me, the present workman is entitled to reinstatement in service as well. However, the penalty of stoppage of two increments with cumulative effect deserves to be imposed on him as has been awarded to his co- Civil Writ Petition Nos.18176 of 1991 & 2634 of 1992 9 employee Roop Singh for the same misconduct. Thus, the contrary submission of learned counsel for Markfed “stricto sensu” deserves to be and is hereby repelled under the present set of circumstances. 24. In so far as back wages are concerned, the Hon'ble Apex Court in case U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 S.C.C. 479, having considered the previous judgments and the relevant provisions of law, observed as under:- “Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. The changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the government in the wake of prevailing market economy, globalization, privatization and outsourcing is evident.” 25. The same view was reiterated by the Hon'ble Supreme Court in cases P.V.K. Distillery Ltd. v. Mahendra Ram, (2009) 5 S.C.C. 705 and HUDA v. Om Pal (2007) 5 S.C.C. 742 and this Court in CWP No.6611 of 1991 titled as “Nirmal Singh son of Surjan Singh Vs. Labour Court, Bathinda and others”, decided on 25.1.2011, wherein 50% of the back wages were granted to the workman under the similar set of circumstances. 26. Meaning thereby, applying the ratio of indicated law laid down by Civil Writ Petition Nos.18176 of 1991 & 2634 of 1992 10 Hon'ble Apex Court, to my mind, in any case, the present workman is naturally entitled to half back wages during the period, he remained out of job (unemployed), till his reinstatement in the obtaining circumstances of the case. 27. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 28. In the light of the aforesaid reasons, the first Civil Writ Petition bearing No.18176 of 1991 filed by the Markfed is dismissed and Civil Writ Petition bearing No.2634 of 1992 is hereby partly accepted. Consequently, the present workman is ordered to be reinstated in service with half back wages till his reinstatement. The respondent-Markfed is directed to pass a fresh order of imposing penalty of stoppage of two increments with cumulative effect in case of present workman as well, in view of and in the same terms of the orders (Annexures P17 and P19) and the impugned award (Annexure P13) is accordingly modified to that extent in the manner indicated here-in-above in this relevant context. (Mehinder Singh Sullar) 21.3.2011 Judge AS Whether to be referred to reporter ?Yes/No