JUDGMENT Shishir Kumar, J.
1. The present writ petition has been filed for quashing the Labour Court award dated 23.2.2000 published on 24.8.2000, Annexure-1 to the writ petition.
2. The facts arising out of the present petition are that the petitioner is a registered company under the Companies Act having its registered office at 18, Barahkhambha Road, Kunchanjinga Building, New Delhi and is having a sugar unit known as Daurala Sugar works, district Meeart. Respondent No. 2 was appointed on 2.12.1987 as Cane Development Supervisor. His service conditions were governed by the Standing Orders governing the conditions of employment of workmen in vacuum Pan Sugar Factories of Uttar Pradesh. The said Standing Orders were in force under the government Notification dated 3rd October, 1958. Respondent No. 2 was charge-sheeted on 9.5.1990 for fraud, dishonesty in connection with the factory's business and property of the Company. The charge against respondent was that he claimed motorcycle allowance for the month of December 1989 to March 1990 totalling Rs. 640/- when the motorcycle was out of order and the same was not used; as such the workman with intention of cheating illegally claimed the amount as motorcycle allowance. The aforesaid act of the respondent amounts to dishonesty in connection with the business and property of the Company and is misconduct under Paragraph M-l (c) of the Standing Orders relating to sugar factories. The aforesaid Clause (c) of the Standing Orders is reproduced below :-
"(c) Theft, fraud, or dishonesty in connection with the factory's business or property or the property belonging to workmen."
3. The reply was invited and an inquiry was conducted by one Sri K. Tiwari as Inquiry Officer and workman was given foil opportunity to defend himself and to cross examine the witnesses of the Management. The Inquiry Officer submitted his report on 14.1.1991. The Investigating Officer found the workman guilty of the charges leveled against him and has found that the workman with dishonest intention has committed dishonesty in connection with the Company business and property by illegally taking motorcycle allowance when his motorcycle was out of order. The Inquiry. Officer has held that this act of the workman amounts to misconduct.
4. The inquiry report was considered by the disciplinary authority in detail and it was found that the charges leveled against the workman are proved and the act of the workman is a grave misconduct, as such he was of opinion that the workman deserves to extreme penalty of dismissal from service as the Management has lost confidence in the workman. The said order was passed by the disciplinary authority on 28.3.1991. Aggrieved by the order of dismissal, the workman raised an industrial dispute before the Conciliation Officer. The conciliation failed and ultimately the Deputy Labour Commissioner, Meerut vide its order dated 29.9.1992 referred the dispute for adjudication before the Labour Court. The case was registered as Case No. 90 of 1992. The reference was "whether the employers were justified in terminating the services of the workman w.e.f. 28.3.1991, if not, to what relief is workman entitled to? The workman filed written statement before the Labour Court and the petitioner has also filed the written statement and the rejoinder affidavit and various documents. On behalf of the Management Sri K. Tiwari, Inquiry Officer deposed and proved the inquiry report and other documents. There were various issues framed by the Labour Court. Issue No. 1 relates to the fairness of domestic inquiry. The Labour Court has decided by order dated 7.1.2000 the preliminary issue regarding domestic inquiry to the effect that it was fair and proper and full opportunity of hearing was given to the workman. The Labour Court has held that the charges leveled against the workman has been duly proved. The Labour Court has clearly erred in law when it has been found that the workman was guilty of charges leveled against him, the Labour Court gave an award on 23.2.2000 with a relief to the workman of reinstatement with 50% back wages and continuity of service.
5. It has been submitted on behalf of the petitioner that directing the reinstatement with 50% back wages and continuity of service are wholly illegal and are liable to be set aside when the Labour Court has held that the domestic inquiry was fair and proper in manner and the workman was given opportunity during the domestic inquiry. The award of the Labour Court is liable to be set aside on the ground alone that if the court holds regarding the guilty of charges, the Labour Court has got no jurisdiction to award reinstatement and other reliefs. Regarding finding of non-supply of inquiry report, the petitioner submits that at no point of time the copy of the inquiry report was demanded, therefore, it was not furnished as there is no provision in the Standing Orders of the Company to supply the copy of the inquiry report. It has to be given only on the demand of the workman. The further submission of the petitioner that in view of the case of Union of India and Ors. v. Mohd. Ramzan Khan 1990 (61) F.L.R. Page 736 of the Apex Court, the principles laid down in the said case will be applicable prospectively, therefore, the finding of the Labour Court that when the disciplinary authority was of the opinion regarding awarding the major punishment to the workman as the copy of the inquiry report was not given prior to the order of dismissal, therefore, as the workman has not been afforded an opportunity by the disciplinary authority the order of dismissal is bad is a finding which is contrary to the judgment of the Apex Court. The petitioner has placed reliance upon a judgment reported in 2004 (27) S.C.C. Page 581 in the case of NTC (WBAB & O) Ltd. and Anr. v. Anjan K. Saha and has referred to para 9 of the said judgment. Another judgment relied upon by the counsel for the petitioner is in the case of Managing Director ECIL Hyderabad v. B. Karunakar 1993 (67) F.L.R. Page 1230 and he has submitted that in the case of non-furnishing of the inquiry report, order of punishment should not mechanically be set aside. Another judgment relied upon by the counsel for the petitioner is , Divisional Controller, KSRTC v. A.T. Mane and he has referred to paras 12 and 13 of the said judgment and has submitted that in the case of misappropriation of the fund by the delinquent employee, the punishment which may be awarded is not open for judicial review. If the Corporation or the employer has lost the confidence or faith in such an employee, the punishment of dismissal is correct. Another judgment relied upon by the counsel for the petitioner is U.P. State Road Transport Corporation v. Mohan Lal Gupta and Ors. 2000 (9) S.C.C. 521 and has submitted that in the case of loss of employer's confidence the Court should not substitute its own finding and direct reinstatement. Further reliance has been placed upon the case of Janata Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) and Ors. v. Secretary, Sahkari Noukarara Sangh and Ors. and has submitted that where the misappropriation of the goods was established in the domestic enquiry and the delinquent employee was dismissed, the Labour Court directing his reinstatement with 25% back wages on the ground that his past record was without blemish, the Labour Court cannot substitute its penalty. In such a way the petitioner submits that the award of the Labour Court is liable to be set-aside.
6. On the other hand learned counsel for the respondent has submitted that as the copy of the inquiry report admittedly has not been furnished to the workman and no second show cause notice, when the disciplinary authority was of the opinion to agree with the inquiry report, has been given, the punishment which has been awarded by the petitioner vitiates in law. Further submission of the respondent is that as from the perusal of the charges leveled against the workman it is clear that no charge was framed against the workman taking into consideration, the past conduct; therefore, while passing the order dismissing the services of the workman, the disciplinary authority cannot take into consideration the previous performance of the workman. It has been submitted on behalf of the respondent that there is no charge against the respondent that he had in any way misappropriated the amount of the motorcycle allowance. It is not the case of the Management that the workman had sold the motorcycle and without having the motorcycle, has charged the motorcycle allowance. There is also no charge against the workman respondent that due to non-functioning of the motorcycle from the period mentioned in the charge sheet there was any slackness on the part of the workman and the performance of the workman was not up to the mark. The workman has clearly stated in his reply that the motorcycle was under repairing and in the month of March 1990 when the workman had sold the motorcycle, he immediately informed the said fact and after that no motorcycle allowance was paid to the respondent. The respondent has also submitted that clause M ( c ) of the Standing Orders is not applicable in the case of the employee concerned because it is not the case of the Management that there is any charge of fraud or dishonesty in connection with factory's business or property belonging to the workman. There was a condition that the allowance will be payable only when the workman concerned will be in possession of the motorcycle in his own name. It has also not been proved or there was any charge against the workman that due to non-working of the said motorcycle for one or two months, there was any affect in the efficiency of the working of the workman concerned.
7. The Labour Court considering all the submissions made on behalf of the parties has come to the conclusion that in spite of the fact that the domestic inquiry was held properly but as the copy of the inquiry report was given to the workman after the order or dismissal and no second show cause notice was given, therefore, the Labour Court has interfered and given an award in favour of the workman. It is well settled in law that if there was no charge in the charge sheet regarding previous conduct of an employee, the same cannot be considered for initiating any action in spite of the fact that the charges leveled against the delinquent employee is proved. It has further been submitted on behalf of the respondents that the contention of the petitioner cannot be accepted that there is no provision in the Standing Orders for giving a second show cause notice while awarding the major punishment. It has been submitted that the Apex Court has clearly held that in spite of the fact that there is no rule regarding the second show cause notice, keeping in view the principles of natural justice, the show cause notice should have been given. The principles of Ramzan's case have been made applicable to all establishments. Reliance has been placed by the respondent upon a judgment of Madras High Court 1997 LLJ Page 88, the Management of Eswaran & Sibs Engineers (Pvt. Ltd. v. III Addl. Labour Court Madras and Ors. and has submitted that the said judgment is based on the Apex Court judgment that punishment vitiated as no notice was given to the workman before taking into account the past record of service.
8. It has further been submitted on behalf of the workman-respondent that the Labour Court was justified in the facts and circumstances of the present case by modifying the order of dismissal in stopping the two increments. Regarding awarding the back wages it has been submitted that though the workman has clearly proved that he was not financially employed anywhere, though it has been denied by the employer. The workman has established this fact that as he was not employed anywhere during the period of pendency of the dispute, but the Labour Court has awarded only 50% of the back wages, the finding recorded by the Labour Court is a finding of fact and need no interference by this Court.
9. I have heard the learned counsel for the parties and have perused the record. It is not the case of the establishment that the workman concerned after selling out the motorcycle has charged the motorcycle allowance. It was in his possession but it appears that during this period it was not in a very proper condition and was being repaired, as such it cannot be said the workman has misappropriated or charged certain amount from the employer without having any vehicle. It is also not the case of the establishment that due to non-functioning of the said motorcycle there was any deficiency in the working of the workman. There is no charge against the delinquent workman that due to non-operating with the motorcycle, the factory had borne some financial loss. In the month of March 1990 when the motorcycle was sold by the workman, he immediately informed the said fact to the establishment and no payment has been made after March 1990, in my opinion, it cannot be said to be a grave misconduct. If it would have been the case by the establishment that the delinquent workman without having any motorcycle or the same has been sold without informing this fact to the establishment, was realizing the motorcycle allowance, then it can be said to be a misconduct on the part of the workman. Regarding taking the previous conduct of the workman, it is now well settled that unless and until for past conduct, there is a charge or person concerned is given an opportunity, the past conduct of a person cannot be for the purpose of initiating an action which is not known to the person concerned can be taken. Admittedly the copy of the inquiry report has been given to the workman after the order of dismissal. In para 10 of the writ petition the petitioner has admitted this fact that the copy of the inquiry report was supplied to the workman after the orders dated 22.4.1991 and 4.5.1991. The Labour Court being the last Court of fact after consideration of the evidence on record has come to the conclusion that the order of dismissal is disproportionate to the offence committed by the workman, as such has substituted the punishment of dismissal by stoppage of two increments. The punishment of dismissal is a major punishment; as such the disciplinary authority while awarding the punishment of dismissal should have stated the reasons. The basis of punishment should have been incorporated in the order of punishment. As the same has not been done, therefore, in view of the judgment reported in 1997 (77) F.L.R. Page 863, the Labour Court was justified in modifying the punishment of dismissal into stoppage of two increments.
10. Regarding the contention raised by the petitioner that the 50% back wages which has been given to 'the petitioner is not permissible in view of the Apex Court judgment in the case of Hindustan Motors Ltd. v. Tapan Kumar Bhattachara and has submitted that the Apex Court has clearly held that unless and until it is proved by adducing the evidence that the employee concerned remained unemployed in interregnum between the dismissal and reinstatement. I have considered the submission made on behalf of the petitioner regarding awarding 50% back wages. The workman has submitted an application that he was not financially employed anywhere during the aforesaid period and has proved it, though there was denial by the employer and the Labour court has cleary considered the Apex Court judgment and on that basis has only awarded 50% back wages, therefore, it cannot be said that the judgment and order passed by the Labour Court suffers from illegality in awarding back wages up to 50%. In Apex Court judgment reported in 2005 S.C.C. (L & S) 631, Allahabad Jal Sansthan v. Daya Shaker Rai and Ors. the Apex Court has observed that " A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal, before which the industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. Inter alia, a pleading to the effect that he had been sitting idle or had not obtained any other employment in the interregnum, must be raised by the workman seeking back wages."
11. In the Apex Court judgment 2005 SCC (L & S) 270 Kendriva Vidyalaya Sansthan and Ors. v. S.C. Sharma, the Apex Court has held that for determination of question of back wages, burden of proof is on the employee. He has to show that he was not gainfully employed and if the same has been proved, the employee is entitled for the back wages.
12. In view of the aforesaid findings recorded by the Labour Court, in my opinion, it needs no interference under the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. The award given by the Labour Court is just and proper therefore the writ petition is devoid of merit and is hereby dismissed. There shall be no order as to costs.