IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRD DAY OF DECEMBER, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.32908 of 1998 Between: The Jubilee Hills International Centre, Road No.14, Jubilee Hills, Hyderabad, rep., by its Secretary. … Petitioner AND The Presiding Officer, Labour Court-I, Andhra Pradesh, Hyderabad & others. … Respondents Counsel for the petitioner : Sri V. Rajagopal Reddy Counsel for respondents 1&2: GP for Labour Counsel for respondent No.3: Sri K. Bala Gopal This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.32908 of 1998 ORDER:- This writ petition is filed for a Writ of Certiorari to quash award dated 13.08.1998 passed in I.D.No.105 of 1994 of the Presiding Officer, Labour Court-I, Hyderabad (for short, ‘the Labour Court’). The petitioner is a Society registered under the Andhra Pradesh Cooperative Societies Act, 1964. Respondent No.3 was engaged as workman by the petitioner. For the alleged misconduct of respondent No.3, who also happened to be the General Secretary of the Employees’ Union of the petitioner Society, disciplinary proceedings were initiated against him, wherein the following charge was framed: “That on intervening night of 23rd and 24th February, 1993 you have instigated and actively participated in pasting posters containing objectionable and abusive language against the Secretary of the Centre on the main gate of the center and at other public places. That on 24.02.1993 at about 7.30 p.m. when you were called into the Committee Room by the office bearers and questioned you for your above said act, you have defiantly replied that you have done the act knowingly and willfully. Your above said act is an act subversive of discipline and has brought disrepute to the Centre.” After completion of the enquiry, the Enquiry Officer submitted his report based on which order dated 24.09.1993 was passed by the petitioner dismissing respondent No.3 from service. Thereafter, respondent No.3 raised an industrial dispute before the Labour Court. By award dated 13.08.1998, impugned in this writ petition, the Labour Court set aside the dismissal order and directed reinstatement of respondent No.3 with continuity of service, attendant benefits and full back wages. At the hearing, Sri V. Rajagopal Reddy, learned counsel for the petitioner submitted that the award of the Labour Court suffers from patent illegality. He submitted that the Labour Court committed a serious error in interfering with the order passed by the disciplinary authority. Sri K. Balagopal, learned counsel representing respondent No.3 supported the award by submitting that the same does not suffer from any illegality and that on a thorough analysis of the entire evidence on record, the Labour Court held that the dismissal order suffers from illegality. A perusal of the award shows that the order, dismissing respondent No.3, was set aside mainly on two grounds, namely; that it is contrary to the provisions of Section 33 of the Industrial Disputes Act, 1947 (for short, ‘the Act’) and that the evidence did not prove that respondent No.3 is responsible for pasting of an objectionable poster and that in any event the penalty of dismissal is disproportionate to the gravity of misconduct. As regards the first ground, the learned counsel for the petitioner strongly contended that no formal notice, as required under Rule 10 of the Industrial Disputes (Central) Rules, 1957 (for short, ‘the Rules’), was issued by the conciliation officer and that therefore the finding of the Labour Court in this regard cannot be sustained. In its order, the Labour Court relied on Ex.W15, counter-affidavit filed by the Assistant Commissioner of Labour, Hyderabad-III, in WA.No.500 of 1994, wherein it was stated that the said officer commenced conciliation meetings with effect from 25.09.1992 between the workers’ union and the petitioner Society to discuss the charter of demands submitted by the workmen with regard to their service conditions on 07.09.1992 and that since then both parties attended its joint meetings before the conciliation officer and the Assistant Commissioner of Labour, Hyderabad-III. It is further stated in the said affidavit that on 18.03.1993 both the parties attended the meeting and that on the same day itself all the disputes were admitted in conciliation and both the parties have signed the minutes of the said meeting. The Labour Court also relied on letter dated 04.10.1993, marked as Ex.W13, sent by conciliation officer, wherein he categorically stated that the dispute pertains to the suspension of respondent No.3 and payment of subsistence allowance, which is the subject matter of conciliation before him and that he came to know that respondent No.3 was dismissed from service while the said conciliation proceedings were pending and pointed out that such action was contrary to Section 33(1) of the Act. The Labour Court also referred to reply dated 07.10.1993, marked as Ex.W14, sent by the petitioner Society, wherein pendency of conciliation proceedings was denied. The petitioner has not denied the authenticity of the affidavit filed by the Assistant Commissioner of Labour, Hyderbad- III in WA.No.500 of 1994. No motives have been attributed to him by the Society in making a statement that the conciliation proceedings were pending. In the face of this admitted fact situation, I do not find any error in the Labour Court accepting the said material and giving the finding that conciliation proceedings were, in fact, pending when the order of dismissal was passed by the petitioner. I have gone through Rule 10 of the Rules, which provides that in the case of non-public utility service, the conciliation officer shall give formal intimation in writing to the parties concerned declaring his intention to commence conciliation proceedings in respect of any information received by him about an existing or apprehended industrial dispute. In this case, the Assistant Commissioner of Labour, Hyderabad-III, categorically stated in his affidavit that both the parties have signed the minutes of the meeting in which all disputes were admitted. As both the parties themselves have attended to the conciliation proceedings and submitted to his jurisdiction, there is no need for the Assistant Commissioner of Labour to issue a formal notice as envisaged under Rule 10. Therefore, non- compliance of Rule 10 in the instant case does not lead to the conclusion that the conciliation proceedings were not pending when the order of dismissal was passed by the petitioner. Section 33(1) of the Act is couched in mandatory terms, which inter alia prohibits an employer from discharging or punishing a workman for any misconduct in connection with the dispute, which is a subject matter of the conciliation proceedings. Therefore, I am entirely in agreement with the finding rendered by the Labour Court that the order of dismissal of respondent No.3 by the petitioner is in violation of Section 33 of the Act. With regard to the merits of the case, the Labour Court considered the oral evidence adduced by both the parties before it and based on such evidence, it has come to the conclusion that respondent No.3 is not responsible for the objectionable poster brought out against the Secretary of the petitioner’s Society. Though the learned counsel for the petitioner made strenuous efforts to convince this Court that this finding cannot be sustained, this Court, exercising jurisdiction under Article 226 of the Constitution of India, will not re-appreciate the evidence on record in order to arrive at a different conclusion. Even where two views are possible, this Court will not substitute the view taken by the Labour Court. The Labour Court not only held that respondent No.3 is not responsible for pasting of the objectionable poster, but also it alternatively held that even if he has shouldered the responsibility as the Secretary of the Union, his dismissal from service is totally disproportionate to the proven misconduct. In my considered view, the finding of the Labour Court does not suffer from any perversity or patent error requiring interference of this Court under Article 226 of the Constitution of India. As regards the award of back wages, though the Supreme Court in recent judgments held that award of back wages following reinstatement is not automatic, on the facts and circumstances of this case, the Labour Court has not committed any error in ordering payment of back wages. Indeed, in view of the finding that the order of dismissal is contrary to Section 33 of the Act, the said order becomes non est in the eye of law. Unless exceptional circumstances are pleaded by the employer such as respondent No.3 being in alternative employment or any other extenuating circumstances, there could be no valid reason for the Labour Court to deny respondent No.3 the back wages. Far from the petitioner pleading that respondent No.3 has secured alternative employment when he was out of service, respondent No.3 himself had specifically pleaded before the Labour Court that he could not secure any such employment. At the hearing, it is also brought to the notice of this Court that the President of the workers’ union Sri Anjaneyulu, who also faced similar disciplinary proceedings and approached the Labour Court after respondent No.3 succeeded in the industrial dispute raised by him, was reinstated following the award passed by the Labour Court with full back wages. In the face of this admitted fact, I do not find any justification for the petitioner Society to deny such a benefit to respondent No.3. For all the abovementioned reasons, the writ petition is dismissed. As a sequel to dismissal of the writ petition, WPMP.No.40428 of 1998 filed by the petitioner for interim relief is also dismissed. ____________________________ C.V.NAGARJUNA REDDY, J Date: 03.12.2008 ES