Raghubir Singh vs Gen.Manager,Haryana Roadways,Hissar

In 1976, the appellant joined the Haryana Roadways as a conductor. On 10.08.1993, the appellant was charged under Section 409 of the Indian Penal Code in a criminal case at the instance of the respondent for alleged misappropriation of the amount collected from tickets and not depositing the cash in relation to the same in time. The appellant was arrested by the Jurisdictional police and sent to judicial custody on 15.09.1994. Further, on 21.10.1994 the services of the appellant were terminated by the General Manager, Haryana Roadways, Hissar, the respondent herein. On 15.11.1994, the appellant upon being released on bail was given an oral assurance by the respondent that he will be reinstated to the post after his acquittal by the Court.

4. On 11.07.2002, upon being acquitted by the Court of Judicial Magistrate, First Class, Hissar, in Crl. Case No. 33-I of 1994, the appellant reported to join his duty, but he was informed by the respondent that his services stood terminated w.e.f. 21.10.1994. The appellant served the demand notice upon the respondent which was not acceded to and therefore, the industrial dispute with regard to order of termination from his services was raised before the conciliation officer. On failure of the conciliation proceedings before him, the industrial dispute was referred by the State Government in exercise of its statutory power under Section 10 (1) (c) of the Industrial Disputes Act, 1947 (for short ‘the Act’) to the Labour Court, Hissar for adjudication of the existing industrial dispute in relation to the order of dismissal of the appellant from his services. After adjudication of the points of dispute referred to it, the Labour Court vide its award dated 22.05.2009 declared that the termination of the appellant from his services was illegal and passed an award of reinstatement of the appellant with 60% back wages from the date of issuance of demand notice till publication of the award and full back wages thereafter, till reinstatement.

6. The Labour Court vide its award dated 17.05.2011 in R.M. No.3 of 2010 answered the reference by passing an award against the appellant on the ground that the reference of the industrial dispute is time barred. The appellant challenged the correctness of the said award by filing a Civil Writ Petition No.20996 of 2011 before the High Court, which was dismissed on 14.11.2011 by the learned single Judge of the High Court holding that the decision of the disciplinary authority of the respondent is in the public interest and therefore, the same does not warrant interference.

7. The appellant thereafter filed Letters Patent Appeal No. 20 of 2012 before the Division Bench of the High Court against the order of the learned single Judge. The same was dismissed vide order dated 09.01.2012 on the ground that the services of the appellant were terminated by the respondent on 21.10.1994 in exercise of the powers conferred upon it under the provisions of Article 311(2)(b) of the Constitution of India, whereas the appellant had raised the industrial dispute vide the demand notice in the year, 2002. The Division Bench of the High Court found no illegality or irregularity in the impugned judgment passed by the learned single Judge of the High Court.

19. In the instant case, as could be seen from the order No.5278/ECC dated 21.10.1994, the charge sheet bearing No. 8648/ECC dated 08.09.1994 was sent to the village residence of the appellant through special messenger of the respondent. However, the charge sheet was not served upon the appellant according to the said order; for the reason that the appellant was neither found in his village residence nor did anyone know of his whereabouts. Therefore, the appellant was informed through the newspaper ‘Dainik Tribune’ dated 04.10.1994 that he should join his duties and deposit the amount regarding tickets within 15 days of publication of the notice and submit his reply. Despite the same, the appellant neither joined his duties nor filed his reply. Since the appellant was being unresponsive, the respondent was of the view that it is in public interest to not keep the appellant in its service. Therefore, an order under Article 311(2)(b) of the Constitution was passed, giving effect to order of termination of services of the appellant and disentitling him of any benefits for the period of absence.

27. In the present case, before passing the order of dismissal for the act of alleged misconduct by the workman-appellant, the respondent should have issued a show cause notice to the appellant, calling upon him to show cause as to why the order of dismissal should not be passed against him. The appellant being an employee of the respondent was dismissed without conducting an enquiry against him and not ensuring compliance with the principles of natural justice. The second show cause notice giving an opportunity to show cause to the proposed punishment before passing the order of termination was also not given to the appellant-workman by the respondent which is mandatory in law as per the decisions of this Court in the case of Union of India and others v. Mohd. Ramzan Khan[7] and Managing Director, ECIL, Hyderabad, v. Karunakar[8].

In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular.....

40. The above critical analysis of law laid down by this Court in the case referred to supra, is very much relevant to the case on hand, which is neither discussed nor considered and examined by the courts below while answering the reference made by the State Government and passing the award, judgments & orders in a cavalier manner. Thus, the lives of the appellant and his family members have been hampered. Further, on facts, we have to hold that the order of termination passed is highly disproportionate to the gravity of misconduct and therefore shocks the conscience of this Court. Hence, we hold that the appellant is entitled for the reliefs as prayed by him in this appeal.

41. In view of the foregoing reasons, the award of the Labour Court and the judgment & order of the High Court are highly erroneous in law. Therefore, the same are required to be interfered with by this Court in exercise of the appellate jurisdiction as there is miscarriage of justice for the workman in this case.

43. For the foregoing reasons, we grant the following reliefs to the workman by allowing this appeal: