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Sarguja Raigarh Motor Karmachari Sangh Vs. Sarguja Raigarh Roadways (Private), Ltd. (by Managing Director) and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1968)IILLJ670MP
AppellantSarguja Raigarh Motor Karmachari Sangh
RespondentSarguja Raigarh Roadways (Private), Ltd. (by Managing Director) and anr.
Cases ReferredP.H. Kalyani v. Air France
Excerpt:
.....employer's well-wisher necessarily implied that he was the employer's man. the applicant's act in assaulting parmeshwar ram may not be a 'misconduct' falling under the first part of clause (h). but having regard to the circumstances in which the assault was made, the petitioner's act of assault was clearly an act subversive of discipline, and as such was 'misconduct' within the purview of clause (h). it has been found by the labour court that the applicant attacked parmeshwar ram because he refused to hand over the keys of office to him which parmeshwar ram was taking to the employer for being delivered to him, and because the applicant treated parmeshwar ram as the employer's man and an informer. if, as has been found, parmeshwar ram was taking the keys to the employer, he was clearly..........the basis of the evidence recorded before it, the labour court found that the petitioner jai das assaulted parmeshwar ram, a co-worker, on 28 december 1962 at about 7-45 p.m. on a public road, that the place of occurrence was outside the work premises and the assault was outside the working hours. in the circumstances in which parmeshwar ram was assaulted, the labour court held that the assault had a rational connextion with the employment of jai das and parmeshwar ram and was not the result of any purely private or individual dispute ; and that the act of assault was thus subversive of discipline amounting to misconduct under clause (h) of para 15. the labour court also held that there was no element of victimization at all in the petitioner's dismissal from service. accordingly, the.....
Judgment:
ORDER

P.V. Dixit, C.J.

1. This is an application under Articles 226 and 227 of the Constitution for the issue of a writ of certiorari for quashing the decisions of the labour court, Raipur, and the industrial court, Indore upholding an order passed on 31 March 1963 by respondent 1, the managing director of the Sarguja Raigarh Roadways (Private) Ltd., Ambikapur, dismissing the appellant Jaidas from service.

2. The appellant was employed an head-mistry at the material time and was also then the general secretary of the Sarguja Raigarh Motor Karmachari Sangh; a registered trade union. His dismissal from service by respondent 1 was as a sequel to an enquiry hold by the said respondent against him on the charges that on 28 December 1962 he assaulted one Parmeshwar Ram, a co-worker, outside the work premises and after the hours of duty, and that he had committed a breach of discipline and also obstructed other workers of the respondent-company in the discharge of their duties. The petitioner made an unsuccessful approach to the non-applicant 1 under Section 31(3) of the Madhya Pradesh Industrial Relations Act, 1960 (hereafter called the Act), for reconsideration of his decision dismissing him from service. He then moved the labour court challenging the legality of the order of dismissal and praying for a direction with regard to his reinstatement in service and for payment of back-wages. The contention of the applicant before the labour court was that the order of dismissal was passed by the management without holding say enquiry and giving him an opportunity to defend himself and in violation of the principles of natural justice, that the dismissal was based on a charge which did not amount to misconduct within the meaning of Clause (h) of Para 15 of the standing orders; and that his dismissal was a sheer act of victimization on the part of the management. The labour court, after finding that the enquiry held by the management was not fair and in accordance with the principles of natural justice, gave an opportunity to the employer to lead evidence to justify the order of dismissal passed against the petitioner. The applicant was also given an opportunity to tender evidence in rebuttal. On the basis of the evidence recorded before it, the labour court found that the petitioner Jai Das assaulted Parmeshwar Ram, a co-worker, on 28 December 1962 at about 7-45 p.m. on a public road, that the place of occurrence was outside the work premises and the assault was outside the working hours. In the circumstances in which Parmeshwar Ram was assaulted, the labour court held that the assault had a rational connextion with the employment of Jai Das and Parmeshwar Ram and was not the result of any purely private or individual dispute ; and that the act of assault was thus subversive of discipline amounting to misconduct under Clause (h) of Para 15. The labour court also held that there was no element of victimization at all in the petitioner's dismissal from service. Accordingly, the dismissal order passed by the management was upheld by the labour court.

3. The petitioner then preferred a revision petition before the industrial court, which was dismissed. The learned president of the industrial court saw no reason to disturb the findings of fact reached by the labour court with regard to the fact of assault by the applicant on Parmeshwar Ram on 28 December 1962 and the motive which actuated the attack. He found himself in agreement with the view taken by the labour court that though the assault was outside the place of work and the working hours, it was so connected with the employment of the petitioner and Parmeshwar Ram as to be subversive of discipline and amounted to misconduct within the meaning of Clause (h) of Para 15 of the standing order. The learned president also rejected the contention of the applicant that his dismissal was an act of victimization on the part of management and that in any case his dismissal became operative from the date on which the labour court made an order upholding the management's order of dismissal and still then he was entitled to be paid back-wages.

4. Before us, Sri Gupta, learned Counsel appearing for the petitioner, reiterated the contentions which had been advanced on behalf of the applicant before the industrial court. His argument was that when the labour court found that the enquiry held by respondent 1 was neither fair nor proper, it had no jurisdiction to enter into the merits of the case in the absence of any pleading before it by the employer that the order of dismissal would be justified by producing evidence before the labour court, that the labour court should not have simply recorded the evidence of the parties but should have followed the procedure that is followed in a departmental enquiry for imposing the punishment of dismissal on an employee, and that this was not done by the labour court. It was further said that whereas the statement of allegations furnished to the applicant by the management mentioned that he assaulted Parmeshwar Ram because he refused to hand over to him (applicant) the keys of the 'office,' both the labour court and the industrial court found that the assault was prompted by the fact that the petitioner regarded Parmeshwar Ram as the employer's man and that he passed on information about workers to the employer, and that the labour court and the industrial court were not justified in giving a finding on a fact not pleaded and making it the basis of their decisions. Learned Counsel maintained that the alleged assault on Parmeshwar Ram being outside the place of work, and also outside the working hours, did not amount to 'misconduct' as defined by Clause (h) of Para 15 of the standing orders; and that is could not in any sense be regarded as an act subversive of discipline. It was also submitted that as the enquiry held by the management was found to be irregular and unfair, the order of dismissal was effective not from the date on which it was passed by the management but from the date on which it was upheld by the labour court; and that consequently the petitioner was entitled to be paid back-wages upto the date of the date of the decision of the labour court.

5. All the contentions advanced by the learned Counsel for the applicant are devoid of any substance. The proposition is now firmly settled by the decisions of the Supreme Court in Sasa Musa Sugar Works, Ltd. v. Shobratikhan and Ors. 1959-II L.L.J. 388 Phulbari Tea Estate v. its workmen 1959-II L.L.J. 663 and Khardah and Co. v. its workmen 1963-II L.L.J. 452 that if an enquiry held by a management is irregular, improper or unfair and not is accordance with the principles of natural justice, then the labour court can discard the finding about misconduct arrived at the domestic enquiry and consider the merits of the matter uninfluenced by the flading reached at the domestic enquiry and come to its own conclusions on the evidence that the employer may lead before the labour court to justify his action and the evidence that the employee may tender in rebuttal. In none of these cases is there anything to support the contention of the petitioner that a defect in the conduct of the enquiry held by the management cannot be cured by simply permitting the employer and the employee to lead evidence in support or rebuttal of the action taken by the management against the employee ; that evidence before the labour court can be led any if the employee first makes before the labour court a pleading for the dismissal of the employee and gives a fresh chargesheet to the workman; that the labour court has to follow the procedure of a departmental enquiry before reaching any conclusion about the validity of the action taken by the employer; and that if the employer does not make any pleading, then the labour court should stop at quashing the decision of the management after finding that the enquiry held by it was unfair or irregular. This argument proceeds on a total misconception of the function of the labour court in an enquiry conducted by it when as application under Section 31(3) of the Act is made to it. When an order or dismissal is challenged before the labour court, that court does not function as any original authority competent to impose the punishment of dismissal. Nor does it become one when it finds the order of dismissal passed by the management to be illegal because of any defect in the enquiry conducted by it. The labour court simply reviews the order of punishment passed by the management and sees whether there is any material to support it. It is, therefore, erroneous to contend that the labour court cannot embark upon any enquiry into the merits of the dispute unless and until the employer makes a specific pleading before it for imposition of the penalty on the employee which the employer had given to the employee. The enquiry that is conducted before the labour court has necessarily to be with reference to the chargehseet and the statement of allegations given to the employee by the management at the domestic enquiry. In the present case, such an enquiry was held by the labour court and the management was entitled to as opportunity to adduce evidence to show that the dismissal of the petitioner was justified, when the labour court came to the conclusion that the domestic enquiry was unfair, improper and not in conformity with the principles of natural justice. When respondent 1 opposed before the labour court the petitioner's application under Section 31(3) of the Act and said that the order of his (petitioner's) dismissal was justified, it would be sheer supererogation to say that even after this opposition the said respondent should have made a specific pleading for the applicant's dismissal and expressed a desire for leading evidence for that purpose. The contention, therefore, of the learned Counsel that the labour court had no jurisdiction to hold the enquiry that it did for seeing whether the order of dismissal was justified in the absence of any such pleading on the part of the employer is untenable and cannot be accepted.

6. The petitioner's complaint that the finding of the labour court that he assaulted Parmeshwar Ram because he regarded Parmeshwar Ram because he regarded Parmeshwar Ram as the manager's man and informer cannot be given effect to as such as allegation was never made against him in the chargesheet or the statement of allegations furnished to him is baseless. The charge and the statement of allegations no doubt did not say in so many words that Parmeshwar Ram was as informer and the employer's man, and this was the motive for the assault. But they did say that on the evening of 28 December 1962 when Parmeshwar Ram after closing the office was taking the keys to the managing director, the applicant stopped him at the motor stand square, slapped him and abused him, and demanded the keys. The statement of allegations also mentioned that Parmeshwar Ram was the Seth's (employer's) well-wisher 'khair swah' (words in Hindi). The statement that Parmeshwar Ram was the employer's well-wisher necessarily implied that he was the employer's man. The witnesses, who appeared before the labour, court, deposed that during the course of assault the petitioner said to Parmeshwar Ram that he was the employer's man and that he used to give information about workers. It was not necessary to give a narration in the statement of allegations of all the motives operating on the mind of the applicant which culminated in the attack on Parmeshwar Ram on 28 December 1962. That apart, when the applicant went, so to say, to 'trial' before the labour court with the knowledge that the question as regards the motive which actuated the attack would be in issue and adduced evidence, he cannot make a grievance that the finding about motive is initiated as it is one beyond the pleadings and no specific issue relating to it was framed by the labour court. Indeed, the criticism made by the learned Counsel against the enquiry conducted by the labour court in the absence of pleadings was nothing but an endeavour to assail the concurrent fladings of fact reached by the labour court and the industrial court. All that criticism is of no avail when the findings of fact cannot be disturbed by this Court in proceedings under Article 226 of the Constitution, and when, as observed by the industrial court, only a faint attempt was made before it to challenge the finding of the labour court in regard to the assault on Parmeshwar Ram.

7. Coming to the contention of the learned Counsel for the applicant that the petition's act in assaulting Parmeshwar Ram outside the work premises and the working hours did not constitute any 'misconduct' as defined in Clause (h) of Para 15 of the standing orders, that the cannot be accepted. Clause (h) of Para 15 of the standing orders is as follows:

The following acts or omissions shall be treated as misconduct:(h) Drunkenness; riotous or disorderly behaviour or conduct likely to cause a breach of the peace or conduct endangering the life or safety of any other person during working hours at the industrial establishment or anywhere on duty or any not subversive of discipline.

This clause makes drunkenness, riotous or disorderly behaviour or conduct during working hours in the industrial establishment or anywhere on duty a 'misconduct.' Under it 'any act subversive of discipline' also constitutes 'misconduct'. It is not necessary that the act subversive of discipline should have been committed during the working hours or when on duty or at the industrial establishment itself. The applicant's act in assaulting Parmeshwar Ram may not be a 'misconduct' falling under the first part of Clause (h). But having regard to the circumstances in which the assault was made, the petitioner's act of assault was clearly an act subversive of discipline, and as such was 'misconduct' within the purview of Clause (h). It has been found by the labour court that the applicant attacked Parmeshwar Ram because he refused to hand over the keys of office to him which Parmeshwar Ram was taking to the employer for being delivered to him, and because the applicant treated Parmeshwar Ram as the employer's man and an informer. If, as has been found, Parmeshwar Ram was taking the keys to the employer, he was clearly discharging a duty. Whether the applicant did or did not have any right to get the keys and whether or not he was right in entertaining the opinion that Parmeshwar Ram was the employer's man and an informer, the assault was perpetrated because of the refusal of Parmeshwar Ram to hand over the keys and because of the opinion entertained by the petitioner about Parmeshwar Ram had clearly a rational connexion with the employment of the petitioner and Parmeshwar Ram. The assault was not one which was a result of a purely private and individual dispute between the applicant and Parmeshwar Ram. If the assault had a connexion with the employment both of the applicant and Parmeshwar Ram, then clearly the act of assault was one subversive of discipline. The argument of the learned Counsel that this was not an act subversive of discipline cannot be accepted without giving to the word 'discipline' a meaning at variance with the normal usage of the English language. The view that the disorderly behaviour or assault, such as the one before us, committed outside the establishment and the working hours, would be an act subversive of discipline if the disorderly behaviour or attack had some rational connexion with the employment of the assailant and the victim is supported by the decision of the Supreme Court in Tata Oil Mills Company, Ltd. v. its workmen 1964-II L.L.J. 113 and the decision of the Punjab High Court in Diwan Badri Das and Ors. v. Industrial Tribunal, Punjab and Ors. 1962-I L.L.J. 526. In our judgment, the labour court was right in holding that in the circumstances the petitioner attacked Parmeshwar Ram, his act was subversive of discipline and constituted a 'misconduct' under Clause (h) of Para 15 of the standing orders.

8. There is also no force in the applicant's contention that his dismissal was an act of victimization on the part of the employer. On the evidence on record the labour court has found as a fact that the applicant was dismissed for his act of assaulting Parmeshwar Ram and for no other activity or act of his done in another context. It is not open to the applicant to assail this finding of fact. The petitioner's prayer for payment of back-wages up to the date of decision of the labour court cannot be acceded to. Even if respondent 1 passed the order of dismissal without holding a fair and proper enquiry, the affirmation by the labour court of that order would relate back to the date when it was made by the management. The matter is concluded by the decision of the Supreme Court in P.H. Kalyani v. Air France, Calcutta 1963-I L.L.J. 679. In that case, it was observed at p. 683 that if the enquiry was defective for any reasons, then the labour court would have to consider for itself on the evidence adduced before it whether the dismissal was justified, and if the Court comes to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified, then its approval of the order of dismissal made by the employer in a defective enquiry would relate back to the date when the order was made.

9. For the foregoing reasons, our conclusion is that there is no error of any kind in the decisions of the labour court and the industrial court justifying any interference under Article 226 of the Constitution with those decisions. This application is, therefore, dismissed with costs. Counsel's fee is fixed at Rs. 75. The outstanding amount of security deposit, if any, after deduction of costs, shall be refunded to the petitioner.


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