Heard counsel for the petitioner and perused the record.
The petitioner was appointed as conductor on 2.6.1972 in U.P. S.R.T.C. purely on temporary basis. On two occasions, he was found carrying passengers without ticket in the corporation bus, hence his services were terminated by order dated 13.7.1973 without any reflection of this misconduct in the termination order as his services were wholly temporary. Appeal filed by the petitioner against termination of his services was also rejected by the Regional Manager vide order dated 20.9.1974.
It appears that thereafter the petitioner raised an industrial dispute before the Regional Conciliation Officer on 30.12.1989 i.e. after delay of about 15 years. The Regional Conciliation Officer condoned the delay in initiation of conciliation proceedings and referred the matter of dispute for adjudication to the labour court under section 4-K of U.P. Industrial Disputes Act, 1947. The reference was registered as Adjudication Case No. 62 of 1993 before Labour Court, Meerut. On receipt of the summons, the parties filed their respective written statements, on the basis of which the labour Court framed the following issues :
fuEufyf[kr vfrfjDr okn fcUnq cuk, x,%& 1- D;k lacaf/kr Jfed dh lsok;s m0iz0 vkS|ksfxd fookn vf/kfu;e 1947 dh /kkjk 6&,u o fu;e 42 ds micU/kksa ds izfrdwy lekIr dh x;h\ ;fn gka rks izHkkoA 2- D;k lacaf/kr Jfed dh lsok lekfIr ds le; mlls dfu"B deZdkj tSlk fd Jfed us vius fyf[kr dFku dh /kkjk&7 esa vfHkdfFkr fd;k gS lsok;kstdksa ds fu;kstu esa Fks tks vkt Hkh fu;ksft pys vk jgs gSa \ ;fn gka rks izHkkoA 3- D;k lsok;kstdksa ds }kjk lacaf/kr Jfed dh lsok lekfIr ds mijkUr le; le; ij mlds oxZ esa deZpkfj;ksa dh fu;qfDr dh x;h vkSj ,slk djrs le; D;k m0iz0vkS0fo0vf/k0 1947 dh /kkjk 6&D;kw o fu;e 43 ds vUrxZr lacaf/kr Jfed dks iqu% fu;qfDr dk volj fn;k x;k \ ;fn gka rks izHkkoA 4- D;k lacaf/kr Jfed us vius lsokdky esa dksbZ vopkj fd;k Fkk tSlk fd lsok;kstdksa us vius fyf[kr dFku dh /kkjk 4]17 o 18 esa vfHkdfFkr fd;k gS \ ;fn ,slk gS rks D;k lsok;kstdksa }kjk bl fo"k; esa dksbZ vuq'kklukRed dk;Zokgh Jfed ds fo:) ugha dh xbZ\ ;fn gks rks D;ksa ,oa mldk izHkkoA 5- D;k lsok;kstdksa dks Jfed ij yxk, x, vkjksiksa dks bl U;k;ky; esa fl) djus dk volj fn;k tk ldrk gSa \ 6- D;k Jfed us ;g fookn nsjh ls mBk;k gS \ ;fn gka rks izHkkoA 7- D;k lacaf/kr Jfed ykHkizn fu;kstu esa gS \ ;fn gk rks izHkkoA 8- D;k lanHkkZns'k fof/klaxr ugha gS \ ;fn gksa rks izHkkoA For the sake of convenience, the labour court decided issue nos. 1,2 and 3 together and recorded a finding of fact that at the time of inspection, the petitioner was found carrying passengers without tickets and when the inspecting party boarded the bus, he started making tickets for the passengers from whom he had already received the fare. The Court also found that provisions of section 6-N of the U.P. Industrial Disputes Act, 1947 read with Rule 42, were not attracted as his services were terminated for the misconduct of carrying passengers without tickets on two occasions which was proved before the labour court and also because the workman failed to prove that his services were termination in violation of the aforesaid provisions.
As regards issue no. 4 is concerned, the labour court has recorded a finding that the petitioner had been found carrying passengers without ticket on two occasions on 3.7.1973 and 10.7.1973 which is a serious misconduct. The court noted the fact that in the circumstances, enquiry was not held by the employer as the workman was a temporary employee and not a permanent one, therefore, there was no necessity for the employer to have held a domestic enquiry into the misconduct of the petitioner, hence his services were terminated after giving him one month's notice. Thus, issue no. 4 was decided by the labour court holding that in the aforesaid circumstances, action of the employer cannot be said to be against the provisions of law or faulted with and that merely because domestic enquiry was not held, action of the employer in terminating services of the workman was not vitiated.
In respect of issue no. 5, the labour court held that services of the workman were terminated after payment of notice pay, hence termination was not vitiated.
In regard to Issue no. 6 regarding delay in raising the industrial dispute, contention of the counsel for petitioner is that Regional Conciliation Officer had condoned the delay in raising the industrial dispute, as such the labour court had no jurisdiction to reject claim of the workman on the ground of delay.
Explanation for delay given by the workman before the labour court was that he was approaching authorities for nine years after termination of his services and thereafter the conciliation proceedings was initially rejected on the ground of delay. Thereafter, the Regional Conciliation Officer allowed the delay condonation application when the dispute was for the second time initiated by the workman. According to the counsel for petitioner, this order of condonation of delay in raising the industrial dispute was not challenged by the employer, hence it became final and the labour court ought to have decided this issue in favour of the workman.
In this regard, suffice it to say that the Regional Conciliation Officer had initially rejected delay condonation application of the petitioner finding that the cause shown was not sufficient for condoning the delay in raising the industrial dispute. Thereafter, when the dispute was raised for the second time, it was referred to the labour court. Cause of action for raising objection on delay, was available to the employer when reference was made to the labour court for adjudication for fixing financial liability. There is a fine distinction between condoning delay in raising the dispute by filing C.B./C.P. proceedings in initiation of proceedings and dismissing one of the issues with regard to reference on the ground of delay by which financial liability may be fastened on the employer apart from dismissing the case on merit by adjudication after appreciation of oral and documentary evidence on record. Normally the Conciliation officer takes a lenient view so that the dispute may be referred for decision by labour court by adjudication which has been done in the instant case. The labour court has not found the cause shown by the petitioner to be sufficient and on merits it has taken a contrary view against the workman. This issue no. 6 has also been decided by the labour court by giving cogent reasons thus :
blds fo:) oknh @ Jfed ds ;ksX; vf/koDrk dh vksj ls esjk /;ku nsjh ds lnaHkZ esa oknh lk{kh dh lk{; dh vksj vkdf"kZr djk;k ftles oknh us ;g dFku fd;k gS fd mlus lsok lekfIr ds vkns'k ds fo:) ekSf[kd o fyf[kr vkifRr;ksa dh Fkha ysfdu mldh vkifRr;ksa dh vksj dksbZ /;ku ugha fn;k x;k vkSj mlds izR;kosnu fcuk dksbZ dkj.k crk;s fujLr dj fn;s x;sA bl lUnHkZ esa oknh Jfed ds izfrfuf/k }kjk ;g rdZ fd;k x;k fd oknh Jfed dk yxHkx 9 o"kZ dk le; foHkkxh; iz;kl esa gh lsok;kstd }kjk u"V dj fn;k x;k vkSj mlus lh0ih0 fookn mBk;k rks mldh =qfViw.kZ rjhds ls dkokf/kr ekurs gq;s fujLr dj fn;k x;kA oknh Jfed ds izfrfuf/k }kjk ;g rdZ izLrqr fd;k x;k fd oknh Jfed dk yxHkx 9 o"kZ dk le; foHkkxh; iz;kl esa gh lsok;kstd }kjk u"V dj fn;k x;k vkSj tc mlus l-ih- fookn mBk;k rks mldks =qfViw.kZ rjhds ls dkyckf/kr ekurs gq, fujLr dj fn;k x;kA oknh Jfed ds izfrfuf/k }kjk ;g Hkh rdZ izLrqr fd;k x;k fd blds i'pkr oknh Jfed us m0iz0 jkT; ifjogu ds lfpo dks izR;kosnu fn;k ijUrq lfpo }kjk ;g lwfpr fd;k x;k fd mfpr ek/;e ls mls izsf"kr fd;k tk; ftlds fo:) oknh lk{kh }kjk ifjogu ea=h dks vihy dh xbZ vkSj vihy dh dkcZu izfr dks bl lk{kh }kjk fl) fd;k x;k ijUrq bl lk{kh }kjk izfrijh{k.k esa ;g Lohdkj fd;k x;k gS fd mlus tks mi iz/kku izcU/kd ¼dkfeZd½ dks izR;kosnu fn;k Fkk og 20-9-74 dks fujLr dj fn;k x;k Fkk vkSj og oknh lk{kh dks fnukad 23-9-74 dks izkIr gks x;k Fkk vkSj blds i'pkr mlus lh-ih- fookn 7-4-82 dks mBk;kA bl lk{kh }kjk ;g Hkh Lohdkj fd;k x;k gS fd lh-ih- fookn nsjh ds dkj.k fujLr dj fn;k x;k Fkk ftldh lwpuk mls fey xbZ FkhA bl lanHkZ esa oknh Jfed ds izfrfuf/k dh vksj ls ;g rdZ izLrqr fd;k x;k fd nsjh ds vk/kkj ij Jfed ds fookn dks fujLr ugha fd;k tk ldrkA vius rdZ dh iqf"V esa Jfed ds izfrfuf/k }kjk esjk /;ku 2007 ¼112½ ,Q-,y-vkj- i`"B 1216 ek0 mPP U;k;ky; dukZVd] 2009 ¼120½ ,Q-,y-vkj- i`"B 01 ek0 mPp U;k;ky; bykgkckn] 2008 ¼116½ ,Q-,y-vkj- i`"B 109 ek0 mPp U;k;ky; bykgkckn] 2001 ¼90½ ,Q-,y-vkj- i`"B 754 ek0 mPpre U;k;ky; 1999 ¼82½ ,Q-,y-vkj- i`"B 137 ek0 mPpre U;k;ky;] 1999 ¼62½ ,Q-,y-vkj- i`"B 169 ek0 mPpre ,oa 2006 ,l-lh-lh- ¼,y ,.M ,l½ i`"B 644 ek0 mPpre U;k;ky; ds fu.kZ;ksa dh vksj vkdf"kZr djk;kA ijUrq bl lanHkZ esa tks lk{; vkbZ gS mlds voyksdu ls ;g Li"V gksrk gS fd ;fn dksbZ izR;kosnu fujLr dj fn;k tkrk gS rks mldh vihy fdl l{ke vf/kdkjh ds ;gka ;ksftr dh tk,xh ;g fof/k ds izkfo/kkuksa ds vUrxZr gh izLrqr dh tk ldrh gSA tks oknh Jfed }kjk ea=h vFkok jkT; ea=h ds ;gka vihy djus dk vk/kkj ,oa lk{; fn;k x;k gS og fdlh Hkh izdkj ls fof/k ekU; ugha gS vkSj leLr lk{; dks voyksfdr djus ls ;g Li"V gksrk gS fd oknh dks lsok lekfIr ds i'pkr~ mldks ,d ekg dk osru Hkh iznku fd;k x;k Fkk vkSj mlus le;kuqlkj dksbZ fookn ugha mBk;k ,oa mlds }kjk fookn dks mBkus esa mnklhurk cjrh xbZA fookn nsjh ls mBk;k ,oa og Hkh fcuk oS/kkfud izfdz;k ds mBk;k x;kA oknh Jfed us ea=h vkfn ds ;gkWa vihy djrs ,oa izR;kosnu nsus ds tks vk/kkj fn;s gSa og fdlh Hkh izdkj ls fof/k ekU; ugha gS ,oa fookn vR;Ur nsjh ls mBk;k x;k gS tks fdlh Hkh izdkj ls le;kof/k esa ugha ekuk tk ldrkA vfrfjDr okn fcUnq la[;k&6 rn~ulkj lsok;kstd ds i{k esa fu.khZ; fd;k tkrk gSA** With respect to issue no. 7, the labour court has held that the petitioner workman was a temporary employee and he had also not completed one year of continuous service in the establishment of the employer, hence even if it is assumed that he was not gainfully employed elsewhere, he would not be entitled to the relief of reinstatement particularly when his services had been terminated pursuant to misconduct committed by him of taking passengers without tickets on two occasions as in that circumstances provisions of section 6-N of U.P. Industrial Disputes Act, would not be attracted.
Lastly, the labour court decided issue no. 8 holding that in the aforesaid circumstances, the workman being a temporary employee and his services having been terminated after payment of one month's notice pay, he is not entitled to reinstatement with continuity of service as his services were terminated on the misconduct proved by the employer before the labour court. The contention of the counsel for petitioner that termination of service of the petitioner on the ground of violation of provisions of section 6-N read with Rule 42 as well as for the reason that no enquiry was held by the employer in respect of charge of carrying passengers without tickets, therefore, the workman is entitled to be reinstated with continuity of service and full back wages, did not find favour with labour court as this contention has no substance in the facts and circumstances of the case.
In this regard, paragraph no. 60 of the decision of the Apex Court rendered in Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh ( A.I.R. 1972 SC-1031), is relevant which deals with situation where no enquiry is held by the employer before dismissing an employee from service. It reads thus :
"60. From the above decisions the following principles broadly emerge :
(1) If no domestic enquiry had been held by the management,or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightaway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.
(1)[1965] 3 S.C.R. 588.
(2)C.A. 992 of 1967 decided 17-9-71.
(2) If a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it, in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. in such a case no inference can be drawn, without anything more, that the management has given up the enquiry conducted by it.
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper,it is the duty of the Tribunal,in the first instance,to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But,if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra,as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove,by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.
(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been available of, or asked for by the management, before the proceedings are closed, the employer,can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.
(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo moto the employer to adduce evidence before it to justify the action taken by it.
(7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under s. 10 or by way of an application under s.33 of the Act."
From perusal of the aforesaid judgment, it appears to be an established law that where no domestic enquiry is held, the employer as well as the employee can justify their stand before the labour court by leading evidence. In case an enquiry is held into the charges, then the employer has option either to rely upon the findings recorded in the enquiry proceedings or lead evidence before the labour court and prove its case to the hilt for sustaining its order that workman had committed misconduct of carrying passengers without tickets on two occasions. It follows that provisions of section 6-N read with Rule 42, would not be attracted if the services had been terminated on misconduct which has been proved before the labour court itself by the employer.
Carrying passengers without tickets is a serious misconduct. The Courts have looked down upon such act of misbehaviour and have held that termination from service is an appropriate punishment of it. Reference in this regard may be made to the decision of the Apex Court in U.P. State Road Transport Corporation, Dehradun Vs. Suresh Pal ( 2006 (8) SCC108) wherein the Apex Court held that carrying bus with passengers without ticket amounted to serious misconduct, more so when committed in the very first year of service, hence such cases should be dealt with an iron hand and not leniently. Therefore, the punishment of dismissal inflicted upon the delinquent conductor ought not to have been interfered with by High Court in exercise of its writ jurisdiction, otherwise the interference by High Court would amount to abuse of the process of court. Similar view has been taken by this Court in Writ Petition No. 27968 of 1992, Ashok Kumar Vs. U.P. S.R.T.C., Lucknow and others, decided on 18.9.2002.
Though the labour court has rejected application of the workman in the reference on the ground of limitation, suffice it to say that labour court has also dealt with the dispute on merits and condonation of delay was one part of it, hence finding of the labour court of this issue does not materially effect as the case has been decided on merits also against him.
Even otherwise, the labour court has recorded a categorical finding of fact that appointment of the workman was wholly temporary and the provisions of section 6-N would not apply in the facts and circumstances of the case.
For all the reasons stated above, this Court is not inclined to interfere with the impugned award dated 19.10.2010 in exercise of its extra ordinary powers under Art. 226 of the Constitution . The writ petition is accordingly dismissed. No order as to costs.
Dt/-28.7.2011 SNT/