1. This writ petition has been filed by the petitioner challenging the Award dated 19.12.2015 passed by the respondent No. 1 whereby the respondent No. 1 has granted reinstatement along with full back wages and allowances to the respondent No. 2 from the date of termination to the date of superannuation.
2. Heard Shri V.K. Upadhyay, learned Senior Advocate assisted by Shri Ritwik Upadhyay for the petitioner and the learned counsel for respondent No. 2, workman, Shri Pankaj Tripathi.
3. The facts of the case as mentioned in the pleadings on record are to the effect that the respondent No. 2 was engaged in the petitioner's factory at Renukoot temporarily for a period of five months w.e.f. 10.07.1982 to 09.12.1982. Thereafter, also he was engaged temporarily from time to time. He was taken on probation w.e.f. 13.06.1996 and was allotted Quarter No. P 764, Hindalco Colony under the licence from the petitioner company. During April and May, 2001 there occurred several incidents of dacoity/robbery in Hindalco Colony in which Security Department of the Hindalco Company investigated and revealed the involvement of the son of respondent No. 2 and the role of the respondent No. 2 in giving help to his son and his accomplices.
4. As such, the Chief Security Officer of the petitioner informed the General Manager (P & IR) of the situation by his letter dated 24.05.2001 and recommended that the respondent No. 2 should not be permitted to stay in the licensed Quarter No. P 764. The respondent No. 2 was served with a charge sheet on 07.06.2001 containing the charge that Shri Virendra Kumar Rawani @ Billu @ Dilawar son of Shri Ram Hari, respondent No. 2 with the help of his accomplices committed dacoity on 09.05.2001 at 8:30 PM in Quarter No. Junior - 2 allotted by the company to Shri Mohan Lal Mishra and threatened his family members by pointing country made pistol and Shri Ram Hari (respondent No. 2) actively participated in saving his son Virendra Kumar Rawani @ Billu @ Dilawar from the clutches of the police. Because of this dacoity/robbery an atmosphere of fear and terror prevailed in Hindalco Colony having an adverse effect on other employees and at the work place.
5. Apart from this, Shri Ram Hari (respondent No. 2) had acted in contravention of the conditions of licence of the Company's Quarter No. P-764 and that he had made the said quarter a place for sheltering criminals. This had resulted in a great risk to the peace and security of the residential colony of the company. The licence of the said quarter was cancelled on 05.06.2001 with a direction to the Shri Ram Hari (respondent No. 2) to hand over the vacant possession of the same, but disobeying the said direction he was illegally occupying the said quarter. It amounted to misconduct under Clause 21 (a) (h) and (y) of the Standing Orders of the Company.
6. The charge sheet, in fact, contained two charges. The first charge was relating to involvement of the respondent No. 2 in the criminal activities of his son. The second related to the respondent No. 2 using the Quarter No. P-764 for harboring criminals in violation of the conditions of the said licence and his non vacation of the same despite cancellation of the such licence on 05.06.2001.
7. The respondent No. 2 submitted a reply. But the same was found unsatisfactory in the domestic inquiry and the Inquiry Officer had submitted his report on 12.03.2002 finding the respondent No. 2 guilty of the charges. The petitioner company sent a show cause notice with a copy of the inquiry report to the workman on 21.03.2002. A reply was submitted by the workman. Finding the reply unsatisfactory the order of termination of service was passed on 09.05.2002.
8. The respondent No. 2 raised an industrial dispute which was referred by the State Government for adjudication to the Labour Court, Allahabad. It was registered as Adjudication Case No. 18 of 2003 which remained pending at Allahabad till 2008, when the Government by order dated 31.01.2008 transferred the same to the Labour Court, Mirzapur. It was renumbered as Adjudication Case No. 92 of 2008 which has been finally decided by Award dated 31.05.2014.
9. During the proceedings of the said Adjudication Case No. 92 of 2008, the respondent No. 2 filed his written statement to which a reply/objection was filed by the petitioner and a rejoinder affidavit was thereafter filed by the respondent No. 2. The Labour Court framed a preliminary issue on 06.03.2006 regarding the validity and fairness of the domestic inquiry. This issue was decided by the respondent No. 1 on 09.01.2009 against the petitioner company. The respondent No. 1 while deciding the said preliminary issue discussed in detail the evidence on record and made extensive and categorical observations on the merits of the charge and also observed that no charge was made out against the respondent No. 2.
10. Aggrieved by the said order dated 09.01.2009, the petitioner company filed a writ petition No. 20605 of 2009 (Hindalco Industries Limited Sonebhadra Vs. Presiding Officer, Labour Court and another). It was disposed off by this Court on 17.09.2012. This Court permitted the petitioner company to prove the charges before the Labour Court and made an observation that the Labour Court shall not take into consideration the observations or findings recorded in the order dated 09.01.2009 relating to the merits of the case. It was also directed to act upon the evidence which was to be now led by either of the parties after remand of the matter to it.
11. The petitioner led fresh evidence before the respondent No. 1 after remand of the matter to it. Three of the Employer's witnesses appeared and their statements were recorded. The oral statement of one of such Employer's witnesses clearly made out the fact that his own house was looted in the incident of dacoity committed in the Hindalco Colony. One of the accused namely Krishna Kumar had revealed the name of Virendra Kumar @ Billu @ Dilawar son of the respondent No. 2 and admitted in the presence of this witness namely Shri Manoj Pant as well as S.O. Pipari, the commission of dacoity with his accomplices Jeet Singh and Virendra Kumar @ Billu @ Dilawar at two places. Shri Manoj Pant also identified some of the goods that were looted in the said dactoity and were found in the possession of the accused Krishna. The accused Krishna also revealed that the respondent No. 2, father of Virendra Kumar used to provide food to them when they were hiding in the forest after committing the dacoity. Shri Manoj Pant's statement on a further date confirmed his statement given in the domestic inquiry where accused Krishna admitted before SO, Pipari that after committing dacoity they fled first to the forest and thereafter came back and started living in Quarter No. P- 764 i.e. the quarter licensed to the respondent No. 2 in Hindalco Colony.
12. The other Employer's witness Shri Deepak Limaye also got his statement recorded that after two robberies in year 2001 the internal security report of the petitioner's colony was submitted and the respondent No. 2 was asked to vacate the Quarter No. P-764 which he never did and was still continuing in the possession of the same.
13. Shri Ashok Kumar Sharma, the third Employer's witness, in his statement confirmed that the respondent No. 2 was absent from duty on 16th, 17th and 18th of May, 2001, on sanctioned leave, as he had gone for the purpose of bail of his son Virendra Kumar Rawani @ Billu @ Dilawar. The management representative in the domestic inquiry, Retd. Major Bhadoria, the In-charge of the internal security had also got his statement recorded before the Labour Court on the basis of the information he had collected on investigation and from the police.
14. After the remand of the case to the Labour Court by this Court by its order dated 17.09.2012, the respondent No. 2 did not make any deposition before the Labour Court. Only on one occasion i.e. on 20.02.2007 the respondent No. 2 had deposed before the Labour Court, which statement given by the respondent No. 2 was relied upon by the Labour Court in its Award impugned in this petition. All the documentary evidences given by the respondent No. 2 were ones which had been relied upon by the Labour Court in its earlier order dated 09.01.2009.
15. It has been submitted that in the Award impugned dated 19.12.2014 the respondent No. 1 has completely misdirected its energies and completely lost sight of the fact that the charge against the respondent No. 2 was not with regard to the theft which was the charge against his son, who was facing criminal trial but they related to the atmosphere of fear and insecurity in Hindalco Residential Colony as a result of the respondent No. 2 harboring his son and his accomplices in his licensed quarter, and his refusal to vacate the same despite cancellation of its licence.
16. It has been submitted that the respondent No. 1 misinterpreted the directions given in this Court's order dated 17.09.2012 that the Labour Court was to act upon the evidence which was to be led after the order dated 17.09.2012, and the remand of the case before it, without taking into consideration the comments and findings recorded on merits of the case in its earlier order dated 09.01.2009.
17. It has been submitted that the respondent No. 1 also dealt only with the first charge on the respondent No. 2 i.e. his involvement in the criminal activities of his son. It totally overlooked the second charge of the unauthorized use of petitioner's licensed Quarter No. P-764 by the respondent No. 2. It has also been submitted that the statements given by the Employer's witnesses were also misinterpreted. The Labour Court instead of applying the degree of proof as required in the domestic inquiry, applied the degree of proof as required in criminal courts for proving of a charge.
18. In the counter affidavit filed by the respondent No. 2 he has denied the charges levelled against him as false and frivolous which though were found proved in the domestic inquiry, were not found proved by the Labour Court. He has also referred to Virendra Kumar Rawani @ Billu @ Dilawar his son, being falsely implicated in the criminal case and his ultimate honourable acquittal along with other accused persons by the competent Trial Court. It has also been submitted that in the Award impugned, it has been held that the termination order of the respondent No. 2 being set aside, he was entitled to live in the quarter allotted to him and he could not be forced to vacate the same. Moreover, the respondent No. 2's son was living separately from him and providing food to the son by his father could not be said to be an offence. It has also been submitted that the Labour Court was not bound to consider the oral statements of the Employer's witnesses to be a correct statement of truth.
19. A rejoinder affidavit has been filed on behalf of the petitioner in which it has denied the contents of the counter affidavit and has reiterated the contents of the writ petition.
20. It has been submitted that at the time when the termination of the employment of the respondent No. 2 was in force he had been held guilty in the domestic inquiry and on termination of his service he was not entitled to retain the quarter licensed to him in Hindalco Residential Colony.
21. Two supplementary affidavits have also been filed by the petitioner. One is of 26.03.2015 wherein it has mentioned the Application dated 02.03.2015 moved by respondent No. 2 under Section 6-H (1) of the U.P. Industrial Disputes Act before the Deputy Labour Commissioner, Pipari, Sonbhadra. One RD Case No. 04 of 2015 was registered on the basis of the said application and a show cause notice was issued to the petitioner company thereafter, annexed as Annexure -2 to the supplementary affidavit.
22. In the second supplementary affidavit dated 16.09.2015 the termination order dated 09.05.2002 by which services of the respondent No. 2 were terminated has been brought on record with respect to the charge sheet issued to him on 07.06.2001.
23. I have heard learned counsel for the respondent, who has stated on the basis of the preliminary order passed by the Labuor Court on 19.01.2009 that the detailed examination of all evidence that was lead against respondent-workman was made by the Labour Court and it was found that the domestic inquiry initiated by giving of charge sheet to the petitioner was conducted by the Inquiry Officer within a period of four days w.e.f. 17.07.2001 to 21.07.2001. The Labour Court had found that all related evidence to the charges mentioned in the charge sheet were also supplied to the respondent-workman only on 17.07.2001 and not at the time when the charge sheet was actually issued.
24. The learned counsel for the petitioner has also referred to various findings of fact recorded by the Labour Court in the order impugned on the basis of judgment dated 29.01.2004 rendered by the learned Chief Judicial Magistrate in Criminal Case No. 1575 of 20001, which resulted in acquittal of Virendra Kumar Rawani alias Billu alias Dilawar, son of respondent workman.
25. It is the case of the respondent-workman that the charges that were levelled against him were related to the alleged dacoity/robbery committed by his elder son and after the decision of the Competent Trial Court dated 29.01.2004 finding the accused not guilty of the offence charged, nothing was left, which could be read against the respondent-workman as misconduct on his part.
26. Learned counsel for the respondent-workman has also argued that the respondent-workman was working in the petitioner establishment since 1977 and upto 2001 when the charge sheet was issued, there was no complaint against the working of respondent-workman at all.
27. Learned counsel for the respondent-workman has also argued that respondent No. 2 has not been shown by the petitioner to have been gainfully employed with effect from the date of termination order passed on 09.05.2002 upto the date of decision by the Labour Court in award dated 19.12.2014, and therefore, back-wages were rightly awarded to the respondent-workman in this case by the Presiding Officer, Labour Court.
28. Learned counsel for the respondent-workman has also argued on the basis of the termination order dated 09.05.2002, which has been filed along with supplementary affidavit by the learned counsel for the petitioner that the said termination order itself is non-speaking and deserved to be set aside on this ground alone.
29. Mr V.K. Upadhyay, learned Senior Advocate in rejoinder has submitted that he has received instructions through E-mail from the petitioner that respondent-workman has still not vacated the Quarter No. P 764 and is residing in the same, and therefore, charge No. 2 is clearly made out, on which no observations have been made by the Presiding Officer in the award.
30. Having heard the learned counsel for the parties, this Court has carefully examined the documents on record. Since the workman has been dismissed after conduct of disciplinary proceedings, the first issue or the preliminary issue framed by the Labour Court was as to whether the disciplinary proceedings were conducted in a fair and just manner. It examined the evidence on record. The workman had in his oral statement submitted that he had been working for 25 years in the factory and there had been no complaint against his work till the date of issuance of charge sheet to him on 15.06.2001. The charge did not contain any documents relating to the complaint made by the police or by the security personnel of the factory. The alleged theft in the residential colony of Hindalco on 17.04.2001 and 09.05.2001 had led to criminal case being filed against the workman's son Virendra Kumar @ Billu @ Dilawar. The Chief Judicial Magistrate, Sonebhadra in Criminal Case No. 1757 of 2001 acquitted his son Virendra Kumar @ Billu @ Dilawar on 29.01.2004 against which order no appeal was filed. The charge against the workman was of helping his son and his accomplices in committing theft and giving them shelter and food. The workman had stated that he was earlier living in a hutment made by him of his own. The Employers had taken away the hut and given him house No. P-764 in exchange. It was small tenement in which he lived along with his wife, three sons and two daughters. His elder son Virendra Kumar lived in the village and had no concern with him. His elder son Virendra Kumar had earlier been incarcerated in jail and he was bailed out and after he was bailed out, he lived in the quarter only for one week and then went back to the village again.
31. The Labour Court found in its order deciding the preliminary issue that the disciplinary inquiry was not conducted fairly, as they were completed within four days. They started on 17.07.2001 and ended on 21.07.2001. The evidence of Employer's witnesses was based on hearsay alone. The alleged recovery made from the quarter of workman i.e. House No. P-764 by the police also could not be believed as such recoveries of articles were not identified before the Chief Judicial Magistrate during the trial.
32. The petitioner filed Writ - C No. 20605 of 2009 challenging the order dated 09.01.2009 deciding the preliminary issue in favour of the respondent workman. This Court agreed with the contention raised by the learned counsel for the petitioners that while deciding the preliminary issue the Labour Court had commented upon the validity of the charges itself and upon the merits of the case at more than one place. In the preliminary order it had only to decide whether the domestic inquiry was fair and proper. The Labour Court had commented upon the legality of the charges. However, this Court did not quash the order dated 09.01.2009 but disposed off the writ petition with a direction to the Labour Court not to take into consideration the comments and findings recorded on merits of the case in the order dated 9th of January, 2009 and it was directed to act upon the evidence which was to be led after the remand of the case.
33. After the remand of the case to the Labour Court, fresh evidence was led. The workman and his defence witnesses Bhanu Pratap Singh appeared. On the Employer's side PS Bhadauria In-charge of the Security of Hindalco Colony, Manoj Kumar Pant, Ashok Kumar Sharma, Deputy Manager and Deepak Limaye, In-charge of Camp Housing Department from 1994 to 2007 appeared.
34. Manoj Kumar Pant was working as General Foreman in Hindalco Industries since October, 1985. He was living in Quarter No. I 867. The dacoity/theft had occurred in his house on 09.05.2001 in which three persons had pointed country made pistol on him and his family members and had locked them up and looted certain things from the house. The police was called in. During the investigation Manoj Kumar Pant was called to the Police Station. He heard from the SHO, Pipari that they had apprehended one Shri Krishna who had made a confessional statement that he along with Ajit Singh and Virendra Kumar @ Billu @ Dilawar had committed robbery. Manoj Kumar Pant was not eye witness to such confessional statement by Shri Krishna.
35. The Labour Court disbelieved the confessional statement as having been given by the accomplice of Virendra Kumar @ Billu @ Dilawar as it was based on hearsay and it had been disbelieved by the Trial Court in Criminal Case No. 1575 of 2001.
36. Shri P.S. Bhadoria, the Security In-charge had also appeared at the initial stage before the Labour Court. However, after remand of matter one Sergeant Vijendra Singh, In-charge of Security and Intelligence of the premises of the petitioner, had made a statement that the son of workman was the gang leader. After committing robbery he and his accomplices used to hide in the jungle and returned after sometime and workman Ram Hari used to provide them food.
37. However, on cross-examination the Labour Court found that the statement of Sargent Vijendra Singh was also based on hearsay as none of the witnesses had seen Ram Hari taking food to the jungle for his son and his accomplices. Nobody had also seen Virendra Kumar, the son of workman living in Quarter P-764. The Labour Court found that it was not possible for a large family of seven members living in a small two roomed quarter to accommodate another three persons.
38. The Labour Court placed its reliance upon the judgment and order dated 29.01.2004 and observed that in Criminal Case No. 1574 of 2001 relating to Case Crime No. 151 of 2001 and in Criminal Case No. 1575 of 2001 relating to Case Crime No. 167 of 2001, The CJM's Court had already acquitted not only the son of workman but also the two other accused on 29.01.2004.
39. It also observed that while disposing off the Writ - C No. 20605 of 2009 this Court in its judgment and order dated 17.09.2012 had not set aside the findings regarding the conduct of disciplinary proceedings by the Labour Court and the order dated 09.01.2009 was still intact.
40. With regard to the claim of the Employers that the workman was not vacating the quarter No. P-764 despite cancellation of his licence, it observed that the workman had been engaged on 24.12.1977 and was a permanent employee of Hindalco Industries for the past 25 years. There was no complaint against his conduct earlier except for the charge sheet that was issued to him in 2001. The charge could not be proved by the Employer before the Labour Court. It observed that in such circumstances the second charge was also not made out. Since in 2004 itself the learned CJM's Court had acquitted all three accused, and the dismissal order was also set aside by the Labour Court, there was no reason for the respondent workman not to retain the Quarter No. P. 764.
41. This Court has noted the argument made by the learned counsel for petitioner that there is no observation regarding the second charge being made out against the workman, the second charge was of retaining the Quarter No. P-764 even after cancellation of allotment and a demand notice for delivering the vacant possession. However, this Court finds that when the first charge was not made out on the evidence produced before the Labour Court, there was no reason for the Labour Court to have held the second charge to be made out. Moreso, when there was no evidence produced that the respondent workman's son or his accomplices had taken shelter in the Quarter No. P-764.
42. The jurisdiction of this Court sitting in Article 226/227 of the Constitution of India to re-examine the evidence already considered by the Labour Court is extremely limited.
43. In Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh 2014 (9) SCC 78 in para 43 a Constitution Bench of the Hon'ble Supreme Court has held as under:-
"........The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal . Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."
44. From the facts of the case as have come out during the course of argument and the findings recorded by the learned Tribunal, this Court does not find the appreciation of evidence by the Labour Court as in any way perverse to warrant its interference in the matter in writ jurisdiction.
45. The Supreme Court in Imperial Tobacco Company Of India Ltd. Vs. Workmen, AIR 1962 SC 1348 had observed that no interference should ordinarily be shown in the writ jurisdiction in the findings of the Labour Court unless the findings are shown to be perverse or irregular.
46. In Management of Madurantakam Coop. Sugar Mills Ltd., Vs. S.Viswanathan : (2005) 3 SCC 193 the Supreme Court observed that normally the Labour Court or the Industrial Tribunal is the final Court of facts but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising its power under Article 226 or 227 can go into the question of fact decided by the Labour Court or the Tribunal but before going into such exercise it is necessary that the Writ Court must record reasons why it intends to reconsider a finding of fact. In the absence of any such defect in the order of the Labour Court the Writ Court will not enter into the realm of factual disputes and the findings given thereon. The Writ Court cannot sit as a Court of appeal on facts and consider item after item of evidence recorded in the domestic inquiry as well as before the Labour Court. If the Labour Court has taken into consideration all facts and the evidence produced by the Employer was not accepted by the Labour Court, the finding of the Labour Court cannot be held to be perverse. It can also not be held that the Labour Court's findings are unsustainable in law although it may be possible for another person to take a different view of the matter but certainly it is not possible to give a finding that the conclusion of the Labour Court was either perverse or not based on any evidence.
47. This Court, therefore, does not find any good ground to show interference in the award impugned. The Labour Court has also observed that the workman had retired during the pendency of the dispute before it and therefore, it has not directed the reinstatement. However, while setting aside the dismissal order dated 09.05.2002, it observed that the back wages be given to the workman along with other admissible allowances from the date of dismissal till the workman reached his age of superannuation. This Court in view of the law settled by the Supreme Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & others, (2013) 10 SCC 324 does not find the relief of full back wages given by the Tribunal in any way perverse.
48. This writ petition is dismissed. The petitioners are directed to make all payments to the workman within a period of three months. The workman having retired is directed to vacate the Quarter No. P-764 forthwith.
49. No order as to costs.
Order Date :- 26.10.2018 LBY