*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 7296 of 2008 % 24.06.2008 Between: The Divisional Manager, A.P.S.R.T.C., Khammam ... PETITIONER AND The Presiding Officer and another. ...RESPONDENTS ! COUNSEL FOR THE PETITIOENR: Smt. P.Rajani Reddy ^ COUNSEL FOR THE RESPONDENTS: Sri Narasimha Goud < Gist: > Head Note: ? CITATIONS: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 7296 of 2008 Between: The Divisional Manager, APSRTC., Khammam. ..... PETITIONER AND 1 The Presiding Officer, Industrial Tribunal- cum-Labour Court, at Warangal. 2 E. Ravinder Reddy S/o Veera Reddy R/o H. No. C/1, Sri Vidyanagar, Suryapet, Dist: Nalgonda. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue Writ, order or direction more particularly one inthe nature of Writ of Certiorari by calling all the records pertaining to the Award in ID No. 121/2004 dated 02-12-2006 by the Hon'ble Industrial Tribunal-cum- Labour Court, Warangal, which was published in G.O.Rt. No. 382 of Labour employment Training and factories (Lab1) Department dt 22-02- 2007 and set a side the same illegal, arbitrary, and contrary to law and pass such other order or orders as this Hon'ble Court may deem fit and proper inthe circumstances of the case. Counsel for the Petitioner:SMT.P.RAJANI REDDY Counsel for the Respondent No.: GP FOR LABOUR The Court made the following : THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 7296 of 2008 ORDER: The 2nd respondent herein is employed as a Conductor in the A.P.S.R.T.C. On 14.04.1987, he was on duty between Khammam and Mahabubabad. A check was exercised by the Officials of the Corporation at stage No.9. Charges were framed against him, alleging that he failed to collect fare and issue ticket to a passenger, who boarded the bus at Stage Nos.8/9 and bound for Stage No.12. The 2nd respondent submitted his explanation and not being satisfied with that, the Depot Manager appointed an enquiry officer. On the basis of the findings in the enquiry report, the Depot Manager passed an order, dated 24.09.1987, removing the 2nd respondent from service. Aggrieved by the order of removal, the 2nd respondent filed an appeal before the Divisional Manager, A.P.S.R.T.C., Khammam, petitioner herein. The appeal was partly allowed vide proceedings, dated 11.12.1987, and the order of removal was set aside. The 2nd respondent was directed to be reinstated without any back wages and punishment of stoppage of annual increment for a period of three years with cumulative effect was imposed. The period, during which, the petitioner remained out of service, was directed to be treated as not on duty. The 2nd respondent approached the Government of A.P., seeking a reference under Section 10 (1) (d) of the Industrial Disputes Act (for short ‘the Act’), feeling aggrieved by the modified punishment. Thereupon, the Government referred the dispute to the Industrial Tribunal-cum-Labour Court, Warangal, framing the necessary question and the same was taken up as I.D.No.121 of 2004. The Tribunal passed an award, dated 04.12.2006, answering the question in negative, and directing that the punishment shall be modified to be one of stoppage of annual increment for a period of six months with cumulative effect and that the period, between the date of removal and the date of reporting to duty, shall be treated as not on duty. The award was published by the Government in G.O.Rt.No.382, Labour Employment Training and Factories (Lab 1) Department, dated 22.02.2007. This writ petition is filed by the Divisional Manager challenging the award of the Tribunal. Smt. P.Rajani Reddy, learned Standing Counsel for the petitioner submits that the very reference to the Tribunal was untenable, since it overlapped the powers conferred on the Tribunal, under Section 11-A of the Act. Placing reliance upon the Judgment rendered by a Division Bench of this Court in K.Dayanand vs. The Depot Manager, A.P.S.R.T.C., Khammam[1], she submits that the Tribunal ought to have refused to answer the reference, since it does not have the jurisdiction to entertain it. On facts, the learned counsel submits that having regard to the gravity of the charge, no further indulgence was needed, than what was shown by the petitioner. Sri Narasimha Goud, learned counsel for the 2nd respondent, on the other hand, submits that once a reference is made by the appropriate Government, under Section 10 of the Act, the Tribunal is bound to answer the same, and that the parameters of adjudication under Section 10(4) of the Act, on the one hand, and Section 11-A of the Act, on the other, are totally different, from each other. He further submits that in several judgments, the Supreme Court held that the Tribunal cannot refuse to answer reference and the view taken by the Division Bench of this Court in K.Dayanand’s case (1 supra) runs contrary to the same. He contends that the petitioner is precluded from challenging the validity of the reference, once he has participated in the proceedings before the Tribunal. He raises an objection as to the maintainability of the writ petition, at the instance of the petitioner. The circumstances, under which the reference came to be made to the Tribunal, have already been stated in brief in the preceding paragraphs. The reference made by the Government to the Tribunal reads as under: “Whether the action of the Divisional Manager, APSRTC, Khammam in imposing the modified punishment of deferment of annual grade increment for a period of three years with cumulative effect besides treating the period from the date of removal to the date of reported for duty as not on duty vide order 11-12-87 against Sri E.Ravinder Reddy, E-302794, Conductor is justified? If not, to what relief the workman is entitled?” The Tribunal answered the reference in negative and held that the punishment mentioned therein is not justified. In view of the second limb of the reference, it indicated a punishment of lesser magnitude. The petitioner challenges the award of the Tribunal. A serious dispute arises as to the very maintainability of the writ petition, at the instance of the petitioner i.e., Divisional Manager. The Depot Manager passed an order, directing removal of the 2nd respondent. An appeal was presented before the petitioner, who, in turn, set aside the order of removal and imposed the punishment of stoppage of annual increment for a period of three years with cumulative effect. The petitioner cannot be said to be an aggrieved party, since he was only an appellate authority. If at all anyone, it was the Depot Manager, who could have maintained the writ petition. An appellate authority or review authority can never associate themselves with the proceedings, whenever the orders passed by them are challenged in any Forum or Court. The present situation appears to have arisen, on account of the fact that in the I.D., the petitioner was made a party. The Registry shall issue necessary instructions to the Sections concerned, not to array the adjudicating agencies either as petitioners or respondents, in the writ petitions. More than the outcome of the reference, the petitioner challenges the very legality of its being made by the Government to the Tribunal. It is pleaded that exercise of power under Section 10(4) of the Act by the Tribunal would be in conflict with the one conferred under Section 11-A of the Act. Strong reliance is placed upon the judgment of this Court in Dayanand’s case (1 supra). Basically, if the petitioner felt aggrieved by the very order of reference, he ought to have challenged the same before this Court, rather than participating in the proceedings before the Tribunal. For the present, let it be proceeded that the order of reference is patently illegal, and the fact that the petitioner participated in the proceedings before the Tribunal cannot make it legal. The Act prescribes the procedure and machinery for adjudication of industrial disputes. For the most part of it, the disputes are to be raised before the Tribunals or Labour Courts, on the basis of the references made by the appropriate Governments or on being sponsored by the Unions. Section 2-A (2) of the Act carves out an exception, where the dispute relates to the validity of dismissal, removal or retrenchment from service. In such cases, the aggrieved party can straight away approach the prescribed Forum. While Section 10 of the Act deals with the manner, in which the proceedings must basically land before the Tribunal, which are mostly in the form of references, Section 11-A of the Act indicates the scope of powers of the Tribunals or the Labour Courts, in the matter of granting reliefs. The contention of the petitioner is that reference is tenable, only against an order of dismissal or removal or discharge from service, and not against an order imposing a lesser punishment. According to him, the only provision, that becomes relevant in such case, is Section 11-A and not Section 10(4) of the Act. The Judgment rendered by a Division Bench of this Court in Dayananda’s case (1 supra) is cited. The observation made by the Hon’ble Judges of the Division Bench in this regard is as under: “The Labour Court ought to have seen that while answering the reference, it would be impinging on the domain of Section 11-A of the Act, which invests the Labour Court with the power to reduce the quantum of punishment only in cases of discharge and dismissal of workmen. In that view of the matter, the proper award to be passed by the Labour Court would have been to hold clearly that it does not have the jurisdiction to entertain the reference made to it.” (underlined by this court) In the ordinary course, this principle must be applied and the award must be set aside. Learned counsel for the 2nd respondent, however, has cited certain decisions rendered by the Hon’ble Supreme Court in support of his contention. For example, in Jai Bhagwan vs. Management, A.C. Co- op Bank Ltd.[2], the Supreme Court held that once a reference is made by the Government, a Tribunal has no jurisdiction to avoid any adjudication in pursuance of the reference. The relevant portion reads as under: “While the Government may exercise their discretion in deciding whether to refer or not to refer a dispute for adjudication, the Tribunal to whom the dispute has been referred has no discretion to decide whether to adjudicate or not. Once a reference has been properly made to an Industrial Tribunal, the dispute has to be duly resolved by the Industrial Tribunal. Resolution of the dispute cannot be avoided by the Tribunal on the ground that the workman had failed to pursue some other remedy.” Similarly, in National Engineering Industries Ltd. vs. State of Rajasthan[3], the Supreme Court had examined the scope of Section 10 of the Act and the decided cases in relation to that provision. It ultimately held that Industrial Tribunal is the creation of Statute and it gets jurisdiction on the basis of reference. It cannot go into the question of validity of the reference. In Mahendra L. Jain vs. Indore Development Authority[4] the Supreme Court observed as under: “Furthermore, the Labour court having derived its jurisdiction from the reference made by the State Government, it was bound to act within the four corners thereof. It could not enlarge the scope of the reference nor could deviate therefrom. A demand which was not raised at the time of raising the dispute could not have been gone into by the Labour Court being not the subject-matter thereof.” The Judgment of this Court in Dayanand’s case (1 supra), on the one hand, and the ratio laid down by the Hon’ble Supreme Court in the Judgments, referred to above, on the other, are clear and unambiguous. This Court is of the considered view that had the first two judgments of the Supreme Court, referred to above, been brought to the notice of the Division Bench of this Court, the result would have been different altogether. Single Judge of the High Court is squarely bound by the Judgment rendered by a Division Bench or a Bench of higher strength. Deviation from it may, in a given case, amount to impropriety. A typical situation, however, arises, where a Judge has to choose between the pronouncements of the High Court, on the one hand, and that of the Supreme Court, on the other, on the same issue. Howsoever convincing, the Judgment rendered by a Bench of superior strength of High Court may be, it cannot persuade the Court to ignore the judgment of the Supreme Court. Apart from the superiority in the hierarchy of the Courts, Article 142 of the Constitution of India mandates that the view expressed by the Supreme Court must prevail. Though at one stage, it was thought of referring the matter to a Bench, of appropriate strength, the idea is given up, on account of the fact that the controversy is governed by the law clearly laid down by the Supreme Court. Hence, this Court is left with no option, except to follow the law laid down by the Supreme Court. In that view of the matter, the ground urged by the petitioner, that the Tribunal ought not to have entertained the reference, cannot be accepted. Coming to the merits of the matter, the petitioner himself felt that the 2nd respondent was not guilty of any serious misconduct and had set aside the order of removal from service. The allegation against the 2nd respondent is that he failed to collect fare from a passenger and issue ticket. The record discloses that the fault was with the passenger. Despite the same, the punishment of stoppage of annual increment for a period of three years with cumulative effect was imposed by the petitioner. Such a punishment would result in denial of fairly good amount of wages to the 2nd respondent for the rest of his career. The Tribunal took note of this and granted appropriate relief. The writ petition is, accordingly, dismissed. There shall be no order as to costs. _________ 24.06.2008 Note: L.R.copy to be marked. (B/o) JSU ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{VSMI} THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 7296 of 2008 Date: 24.06.2008 JSU [1] 1993(1) ALT 164 (D.B.) [2] 1983 Labour & Industrial Cases 1694 [3] 2000 Labour & Industrial Cases 260 [4] 2005(1) Supreme Court Cases 639