JUDGMENT Rakesh Tiwari, J.
1. This writ petition is directed against an award passed by Labour Court (2) U.P. Kanpur in Adjudication case No. 89/82 between M.S. Hindustan Aeronautics Limited, Aircraft Division, Chakeri, Kanpur and its workman Mustaqim Ali.
Backdrop of the Case
2. The petitioner-Hindustan Aeronautics Limited is a company incorporated under the Indian Companies Act, 1956 having its registered office at Bangalore. It is engaged in manufacture, overhaul and repair of sophisticated Aircrafts and other 'Defence Eqnuipments' and is a 'Defence Establishment'.
3. The dispute relates to dismissal of the concerned workman-Mustaqim Ali from service. He was initially employed in the petitioner-company as Apprentice Fitter on 16.6.1994. With the passage of time, he was promoted to the post of Fitter-A in 1969 and thereafter as Project Man (A) in 1978.
4. The workman was charge sheeted by memorandum dated 30.3.1979 for certain misconducts, i.e. use of force and physical assault for gaining his unauthorised entry in the factory through the workers gate No. 4, with the support of a few other workmen by intimidating and threatening the security when stopped by them. The following charges were framed against Mustaqim Ali- workman:-
1. On 23.2.79 at about 7.35 hrs. while he was under suspension and not allowed to enter the factory premises, he along with Sri N.L. Sharma, p/5547 filed service Mechanic and Shri N.K. Sharma P/6690 Fitter Gen. 'B' who were also under suspension, came to the workers gate and forcibly attempted to gain entry in the factory premises by S/Shri B.N. Kaushik, Assistant Supervisor, Ajaib Singh, Jamadar, N.K. Dwivedi, Pyarelal, Awadh Raj Singh, Ram Pal Singh and Sunder Singh, Guards on duty, he pushed them in side the factory gate by using force and physically assaulted them and gained unauthorised entry in the factory through the workers gate No. 4 with help of S/Sri R.M. Dubey, Malkhan Singh, J.N. Thakur, Girdhari Lal and R.N. Misra who were supported by a few other workers;
2. That again on 24.2.79 while he was under suspension and not allowed to enter the factory premises, he again came to the workers gate at about 0735 hrs. and forcibly attempted to enter the factory premises and when he was stopped from entering the factory by Sri A.K. Mallick, Assistant Supervisor and other security personnel on duty, he forcibly gained unauthorised entry in the factory premises through gate No. 4 of the workers gate and he abused and threatened the security personnel on duty.
3. That he again on the February at about 0740 hrs. on 27th Feb, at about 0733 hrs., on 28th Feb at 0735 hrs., on 1st March at about 0738 hrs, on 2nd March at about 0740 hrs, on 3rd March at about 0745 hrs on 5th March at about 0745 hrs, on 6th March at about 0747 hrs on 7th March at about 0746 hrs and on 8th March 79 at about 0735 hrs cam to the workers gate and forcibly entered the factory premises.
4. That his above acts, if proved are acts of misconduct under para 25(ii), (13), (33) and (49) of the certified Standing Orders of the company."
5. A domestic enquiry was initiated in which the workman participated on 23.10.1979 and thereafter did not attend the enquiry proceedings, though 14.10.1980 was fixed as next date of enquiry in his presence. The enquiry proceedings were held ex parte thereafter and the enquiry officer returned a finding holding the workman 'not guilty of the charges'.
6. The disciplinary authority disagreed with the conclusions of the enquiry officer, and issued a show cause notice dated 20.5.1981 to respondent No. 3 as to why he may not be dismissed from service. According to the reasons given in annexure 3 to the writ petition, the show cause notice dated 12.5.1981 was not comprehensive, another detailed notice dated 22.6.1981 was issued to him and the workman was called upon to comply with the later notice. A Hindi version of the show cause notice was also enclosed, proposing penalty of dismissal from service taking into account his previous mis-conducts also. The notice dated 22.6.1981 was received back unserved with the endorsement-
"There times refused ckj ckj tkus ij u izkIr drkZ feyrk gS vkSj u feyus dh dksf'k"K djrk gS ghykq gokyh budkj okilÞ
7. The respondent-workman was dismissed from service by order dated 3.7.1981.
8. Aggrieved by his dismissal, respondent No. 3 raised an industrial dispute. As no settlement could be arrived at in the conciliation proceedings, the following matter of dispute was referred by the State Government to Labour Court (1) by Government Order dated 27.2.1983 in exercise of powers under Section 4-K of the U.P. Industrial Disputes Act, 1947.
ß vkS/kksfxd fookn ¼nks½ dk fooj.k D;k lsok;kstdkas Onkjk vius Jfed ,e0 vyh iq= ekS0 lqyeku vyh izktsDVeSu ¼,½ dh lsok, fnukad 3-7-81 ls mfpr rFkk @ vFkok oS/kkfud rjhds ls lekIr dh x;h gS \ ;fn ugha rks lacaf/kr Jfed D;k ykHk @ vurqks'k ¼fjyhQ½ ikus dk vf/kdkjh gS rFkk fdl fooj.k lfgr \Þ
9. The order of reference was registered as Adjudication case No. 7/22 in the Labour Court. On receipt of summons, the workman and the employer filed their respective written statement and rejoinder statements. They also adduced evidence in support of their respective cases. Latter on, the case was transferred by Government order dated 29.11.1982 to the Labour Court (2) Kanpur which gave the award in favour of the workman impugned in the writ petition.
10. Case of the Workmen- The case of the respondent No. 3 workman before the Labour Court was that:
(a) He was awarded several appreciation certificates for his good work and conduct. He had also held various executive posts in the 'Karmachari Sangh' such as Vice President and Joint Secretary etc., had been member of various inspection committees and served as Vice President of Hindustan Aeronautics Limited club, a joint venture of workers and management of the employers. As some officials were jealous and became annoyed with the appreciation of his good work and promotion of goodwill and healthy relations between the management and the workers' union, he was issued charge sheet dated 30.3.1979 to take out their grudge on him.
(b) He was not properly served with the charge sheet as required under Standing Orders, management had indulged in unfair labour practice as they had suspended him before issuing the charge sheet itself: the enquiry proceedings were totaly farce and he was being penalized for his trade union activities.
(c) The domestic enquiry was not fair and proper as he was not afforded reasonable opportunity to defend himself. The enquiry proceedings were held ex parte and that he was dismissed from service in colourable exercise of power. Charges are false, baseless and misconceived, that he was not prevented by the security staff on the gate from entry in the factory premises for duty on any of the dates mentioned in the charge sheet. It was also the case of the workman that the punishment of dismissal was not only disproportionate but was far more excessive of the charges levelled against him and he is entitled to be reinstated with continuity in service and full back wages and other consequential benefits.
Case of the Employers
11. The Case of the employers was that the petitioner-establishment is a 'Defence Establishment' and discipline is of essence in such establishments. The past conduct of the workman was not good and he was punished earlier also by orders dated 19.3.1971 and 22.11.1979. By these orders he was awarded (i) punishment of stoppage of two increments with cumulative effect and (ii) reversion in lower stage in time pay scale at Rs. 470/- while he was working in pay scale of Rs. 470-16-790 at that time respectively, that merely because the workman had been holding some post in the trade union earlier does not itself vest him with legal right to commit misconduct by forcing his entry in the factory premises as the injunction order granted to the workman by the Civil Court did not give him any unfettered right to enter the factory by use of force.
12. According to the petitioner, the services of the workman had been dismissed for committing gross misconduct. The charge sheet was sent to him through the Secretary of the Workers Union on 10.4.1979 but the delinquent workman did not care to give any reply to the charge sheet. The enquiry officer was appointed and the workman was also informed about the time, date and place of enquiry but he did not appear on 23.4.1979 and attended the enquiry proceedings only on 23.7.1979 and not thereafter. It was also the case of the employers that service of an employee was also made available to the enquiry officer for recording the proceedings in Hindi in order to help the workman. The workman was also informed of the dates and places of the enquiry which was held in accordance with the principles of natural justice. The workman was also permitted to take the assistance of Sri R.C. Gupta, his co-employee. The enquiry proceeded ex parte as he has deliberately avoided to participate in the enquiry; that an office bearer of Trade Union has no licence for committing misconduct. Charge Nos. 1 and 2 levelled against the workman stood proved and he deserved punishment of dismissal from service which was serious in nature and commensurate with the misconduct.
Award Dated 21.3.1986
13. The Labour Court by award dated 21.2.1986 came to the conclusion that though the workman was not afforded reasonable, fair and proper opportunity in enquiry and the charges against the workman were not found to be proved by the enquiry officer. The Labour Court gave the award in favour of the workman holding that termination of his services was illegal and consequently directed the employers to reinstate the workman on the post of Project Man (A) with continuity of service and full back wages for the period of unemployment. The petitioner challenged the award in Civil Misc. Writ Petition No. 8272 of 1986- Hindustan Aeronautics v. State of U.P. and Ors. The writ petition was allowed and the matter was remanded back to the Labour Court for decision afresh. While allowing the writ petition, it was observed by this court that:
"...Thus, the position which emerges from the various decisions is that the Labour Court should first decide the preliminary issue if the domestic enquiry was defective or violative of principles of natural justice. In case it is found that the enquiry was defective and violative of principles of natural justice it will be open to the employer to pray before the Labour Court or Tribunal to grant permission to adduce evidence and place material before the Tribunal or Labour Court in support of the charges. Once such permission is granted and evidence is adduced by the parties, the Labour Court is required to reach at its own independent conclusion. In the instant case what has been done by the Labour court is that despite recording evidence of the parties, the authority below simply ... parties it did not consider the evidence adduced by the parties. The authority below simply examined the validity of the domestic enquiry and held that it was violative of principles of natural justice and that the authority below, i.e., Labour Court itself examined the ex parte evidence adduced during the domestic enquiry and it is only on the basis of reappraisal of such evidence held that the charges are not proved. The Labour Court in its award just mentioned that the employer and the employee examined four witnesses each but did not consider it necessary to discuss the evidence adduced by the parties and come to an independent finding on the basis of such evidence adduced before it....
In this view of the matter the petition is allowed. The award dated 21.3.86 is set aside and the case is sent back to the Labour Court for fresh award after considering the evidence adduced by the parties before the Labour Court and keeping in view the observations made in the body of the judgment. Since the matter is pending for a sufficient long time the Labour court is directed to dispose of the reference before it within a period of 4 months from the date on which a certified copy of this order is produced before it.
No order as to costs."
14. After remand of the case, the case was once again taken up by the Labour Court for adjudication afresh in the light of the judgment aforesaid and fresh award dated 18.5.2001 was passed by the Labour Court. It was enforced by publication on the notice board on 8.8.2001. Aggrieved by the award dated 18.5.2001, the present writ petition has been filed.
Submissions of the Petitioner
15. The petitioner has challenged the validity and correctness of the impugned award dated 18.5.2001 on the ground that it is illegal and perverse.
16. It is submitted that the Labour Court committed the same error as in the earlier award i.e., it did not return any independent and conclusive finding as to whether there was an incident of 23rd and 24th February 1979, and whether the workman was actually engaged in the act of misconduct of forcible entry in the factory indulging in violence and assault on security personnel. It is also submitted that finding of the Labour Court that charge sheet was not served to the workman in accordance with law and it ought to be published in incorrect and perverse as the High Court had come to the conclusion that the workman was fully aware of the charge sheet and also participated in the enquiry; further that the Labour Court formed and adverse opinion and disbelieved the evidence of the security staff only on the ground that no independent witnesses were produced by the company in support of their case regarding he incident of forcible entry and assault by the workman, except the security staff.
17. It is urged that there could have been no better evidence than the security staff which was present, and saw the incident; that the Labour Court has not given any reason for disbelieving the evidence by a few responsible employees of the company. It is lastly submitted that the finding of Labour Court that the petitioner-company had adopted an unfair and revengeful attitude towards the respondent-workman, which is not founded on any material is perverse. It is stated that the enquiry was fair, proper and in accordance with the principles of natural justice and the petitioner-company cannot afford to take back into service a workman who has indulged in such gross misconduct, particularly in defence establishment where discipline is of essence.
18. Reliance in this regard has been placed to the decision of apex court in Managemnt of Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr. - ; Ram Prasad Prajapati v. Labour Court Allahabad and Anr. - 2003(4) AWC-2651; Shahbudein v. Labour Court Ghaziabad and Ors. (2002)3 UPLBEC-2132; and U.P. Textile Corporation Spinning Mills Jhansi v. State of U.P. and Ors. - 1997(75) F.L.R.-44.
Submissions of Respondent-Workman
19. The workman has expired during the pendency of the writ petition. A counter affidavit has been filed by Mukhtar Ali who alleges himself to be son of the deceased- Mustaqim Ali- workman-respondent No. 3. A substitution application for substituting the legal heirs has also been filed by the petitioner which is available on record. At the outset, learned counsel for the respondents has submitted that he has no objection to the heirs of deceased being brought on record. The substitution application is accordingly allowed.
20. The learned counsel for the respondents supporting the award submitted that the impugned award has been rightly passed in favour of the respondent No. 3- workman and the same is in accordance with the direction of this court in Civil Misc. Writ Petition No. 8272 of 1986. He also submits that the Tribunal has specifically noted and dealt with the evidence of the parties in the impugned award and has given an independent conclusion on merits with regard to the dispute in reference. According to the learned counsel, the enquiry officer appointed by the management in the domestic enquiry proceedings found on basis of the evidence led by the petitioner-company that the workman concerned was not guilty of any of the charges and he deserved to be reinstated in service. Accordingly he submitted his report before the authorities. He further submits that respondent No. 3-workman had a valid and legal injunction order in his favour from a competent Civil Court and had every right to enter the premises of the factory without contravening any law, that as no such incident, as alleged by the management had ever happened and they were permitted to go inside the factory, there is no question of violation of any law.
Conclusions
21. The decision in this case depends on the conclusion as to whether there was an incident of forcible entry and assault in the factory premises by the workman-Mustaquim Ali as alleged by the employers, during the course of which workmen assaulted security staff or there was no such incident as has been held by the Labour Court. The judgement, therefore, depends primarily upon the evidence of the employers about misconduct alleged to have been committed by the workman and whether the punishment awarded was disproportionate to the charges levelled against the workman or not.
22. In his examination-in-chief, Chandrika Prasad Dwivedi on 20.7.1983, a member of security staff, he has narrated the incident alleged to have taken place on 23.2.1979 and he deposed that the gate was opened by M. Ali from outside along with some workmen and that he was pushed from behind by others. The relevant portion of his statement is as follows:-
ß -------- vkSj ckgj ds Jfed dks HkhMq vkSj yksx us gedks [khp fy;k A ckgj dk dq.Mk [kksy fn;k ! ckgj dk dq.Mk ,e0 vyh vkSj ,u0ds0 'kekZ vkSj vU; deZpkfj;ksa us [kksyk ! gedks dqN deZpkfj;ksa us [khap fy;k muesa ,u0ds0'kekZ Fks dqN us ihNs ls <dsy fn;k A tc xsV [kqy x;k rks rhuks lLisUMsM bEiyk;h vkSj Jfedksa ds lkFk vUnj pys x;s A Þ
23. The statement of Sri B.N. Kaushik, Assistant Security Officer is also vague and no role has been assigned to workman-Mustaquim Ali. His statement is also general, in nature. He stated that the workmen forcibly opened the gate from outside. Sri B.N. Kaushik being inside the gate could not have seen Mustaquim Ali opening the gate. The relevant portion of his statement is quoted below:-
ß ---------- ckgj ls ;s rhuksa lLisUMsM bEiykbZ uRFkw yky 'kekZ ,e0 vyh ,u0 ds0 'kekZ nwljs vknfe;ksa ds enn ls tks Hkh xsV ds ckgj bdVVs Fks tcjnLrh xsV ua0 4 ckgj ls [kksy fn;k bl ij eSa xkMZ vkj0ds0fInosnh] vtk;c flag vkSj vU; tks xkMZ vUnj Fks xsV dks cUn dj fy;k eq>s ,d odZj fxj/kkjh yky us cka;s dU/ksZ ds 'kksYMj ls idM dj vUnj dh rjQ Qsad fn;k vkSj ckj ls bu yksxksa us vtk;c flag vkSj xkmZ vkj0ds0 fOnosnh tcjnLrh xsV ua0 4 ls ,d rjQ <dsy fn;k A bl /kDdk eqDdh esa dbZ xkMksa dks pksV vk x;h AÞ In his cross-examination also, he has admitted that the endorsement made in the daily diary regarding the incident is not certified but contains the signature of Sri S.M. Srivastava, officer of the petitioner-establishment. It is also evident from his cross examination that allegedly he had given an order to the security staff that Sri N.L. Sharma, Sri N.K. Sharma and Sri M. Ali should not be permitted to enter inside the factory gate even if force is required and for this purpose. About 25-30 guards were deputed for this purpose. It has also come in evidence of the witnesses that gates are so narrow that with the guards covering the gates only one person, at a time, can enter through it. It has further come in evidence that when the gates were closed from inside, S/Sri M. Ali, N.L. Sharma and N.K. Sharma were outside the gate.
24. Sri A.K. Malik, another witness of the employers stated that Natthu Lal Sharma caught hold of the color of Sri Kaushik and many other people also went along with Natthu Lal Sharma and when the crowd entered, Sri M. Ali, and Sri N.K. Sharma also entered with the crowd. The relevant portion of his statement is as under:-
ß ----------- rc rd uR;q yky 'kekZ] ds lkFk vkSj yksx gks x;s Fks vkSj dkQh HkhM bdVBk gks x;h Fkh A mlesa Jh Mh0,u0 ik.Ms] esBk yky] gfjgj flag o vU; Jfed 'kkfey gks x;s Fks A Jh uRFkw yky LkzLisaMM bEIykbZt esa Jh ,e0 vyh ,u0 ds0 'kekZ Hkh Fks A Jh ,e0 vyh ,u0ds 'kekZ ?kql x;s AÞ
25. From the above, it is crystal clear that whatever role has been assigned, has been assigned to Sri Natthu Lal Sharma and that M. Ali only went inside along with crowd through the gate after it had been opened by some workers, whose names have not been disclosed in the evidence led by the employers. He again confirmed in his cross examination that he could not stop the momentum of the crowd and M. Ali as well as N.L. Sharma came inside with crowd. The exact words used by him are:-
ß ----------- ge yksxksa us HkhM esa ?kqlus ls jkdus dh dksf'k'k dh ysfdu HkhM bruh rst vkbZ fd os yksx vUnj ?kql x;s ! ckn esa HkhM ds lkFk uRFkw yky 'kekZ Hkh vUnj ?kql x;s A Þ
26. In his evidence also, no role has been assigned to M. Ali regarding assault or forced entry. What has been stated is that he came inside the factory premises with the momentum of the crowd.
27. The next witness Ajaib Singh, in his evidence has stated that after the gates were closed. Sri M. Ali along with other workers moved away from the gate and started slogan shouting on 23.2.1979. The same incident was repeated again on 24.2.1979 but the gates were not closed on that day. Regarding injuries, he has stated that insignificant injuries were received by him i.e. ge yksxksa dks NksVh eksVh pksVsa vkbZ Fkh In his cross examination on 26.8.1983, he stated that the three workmen were going inside the factory and were stopped. After they were stopped, the gates were got closed to prevent them from entering the factory premises. Force was used by the secruity staff to stop them. The workmen went back 15-20 yards steps and when the gate was got opened by some persons from inside, these three employees went inside the gate. The relevant portion of his statement is as follows:-
ß ---------- 7&35 cts ;g rhuksa vUnj tk jgs Fks A ml le; geus gUgsa jksdk gekjs ftrus Hkh xkMZ Fks lc yksxksa esa jksdk esjs jksdus ls ;s yksx [kd x;s A xsV ge yksxksa esa mlds ckn blfy;s cUn djok;k fd ;s yksx vUnj u tk ldsaA ftl le; geus xsaV cUn djok;k ml lel 7-40 cts Fks A ge yksaxksa dks ;g vksn'k Fkk A fdlh rjg ;s yksxk vUnj u tk lds vkSj bu rhuksa yksxksa dks jksdus ds fy;s cy dk iz;ksx fd;k A tc ge yksxksa us igyh ckj jksd fn;k rks ;g rhuksa la0 Jh0 10&15 dne ihNs pys x;s A xsV ls lMd djhc 20 dne nwj gS A xsV djhc 7&45 ij [kqyk ! og vUnj ls [kksy fn;k x;k tks fuf'pr le;
eSa crk jgk gw¡ og eSa viuh ?kMh ls crk jgk gw¡ tks eSaus ns[kk Fkk A ;g rhuksa lañ Jñ 785 cts tc vUnj lsa xsV [kqyk rc vUnj pys x;s ! tc ;s yksx vUnj tk jgs Fks rks budks jksdk x;k Fkk ysfdu ;s yksx ge yksxksa dks ijkLr djds pys x;s Fks -----
He concluded his evidence by stating that even police personnel were present at the spot at that time but they did not interfere and that the workers went inside the gate by use of force.
28. From perusal of the entire relevant evidence available on record, it is evident that no specific role has been assied to M. Ali insofar as any deliberate assault, mar-peet or forced entry is concerned. At the most, what has come in the cross examination of Sri Dwivedi is that Sri M. Ali has pulled him aside and opened the gate. The intention of M. Ali is clear from the evidence that on being stopped from entering the factory premises by the security gards, he along with other concerned workmen went about 20-30 steps away from the gate; that the gate was opened from inside and the worker went inside with the momentum of crowd. Except this, there is no evidence on record regarding any assault or forced entry inside the gates by M. Ali. Labour Court after discussing the evidence has categorically held that no independent witness by the employers was produced in support of their case before it. It is apparent from the records that police personnel present at the time of the incident who are said not to have interfered during the scuffle. A large number of employees inside the factory gate were also there apart from the workmen but none was produced. All that was said was that there was some pulling and pushing inside as well as outside the gate. The Labour Court disbelieved the evidence of the employers and has given a finding of fact on basis of evidence that no such incident happened on 23.2.1979 or 24.2.1979 as alleged by the employers. The witnesses on behalf of the workman as well as the workman himself has denied any such incident of scuffling, forcible entry and physical assault on the aforesaid dates in their evidence.
29. Even if the incident of 23rd and 24th February, 1979 is accepted to have taken place as alleged by the employers the punishment given by them is disproportionate to the alleged misconduct. Punishment of dismissal from service to M. Ali, who is said to have pushed aside a guard and opened the gate from outside is too harsh even if there was some truth in allegation. In fact, there is no creditable evidence on behalf of the employers that the concerned workman physically assaulted S/Sri B.N. Kaushik, Ajaib Singh, N.K. Dwivedi, Pyarelal, Awadh Raj Singh, Ram Pal Singh and Sunder Singh for unauthorised entry in the factory premises. In fact, it has clearly come in evidence of the workers before Labour Court that they had puched their cards and had gone on duty and no such incident had taken place. If the version of the employers is accepted even then when the workman was informed that he could not enter the factory premises, he along with other workmen had gone 15-20 steps away from the gate. This shows that they had obeyed the orders of the employers.
30. Labour Court has disbelieved the incident itself as according to the findings given by the Labour Court the records were prepared and there was no creditable evidence against M. Ali. Even in the criminal case before the criminal court where the standard of proof is very strict, the case of the employers has been disbelieved by the criminal court with regard to the incident and the workman had been acquitted. Labour Court has also disbelieved the case set up by the employers and has given cogent reasons for it. The finding is a finding of fact and is not perverse. Even if such incident took place, as alleged by the employers, the punishment for entering the factory premises, by opening the gate from outside (it was already opened from inside by the workmen), with the momentum created by the crowd is inconsequential.
31. The matter may also be looked from yet another angle. Admittedly, the employer had been served with the copy of injunction order passed by civil court though a Peon on 22.2.1979. The employers were duty bound to give due credence and obey the order of the court. On the contrary, it has come on record that Sri Kaushik gave orders to the guards not to permit the workers to enter inside the factory. This amounts to undermining the authority of the court of law.
32. The workman concerned has expired. He had an award in his favour. The charges could not be proved by the management against him in the domestic enquiry as well as before the Labour Court. It has been held by the Labour Court that Sri M. Ali was entitled for reinstatement in service with full back wages. His reinstatement is not possible now, as such, it is directed that the employers shall make full payment in terms of the award to his heirs together with an interest at the rate of 10 per cent per annum within a period of 6 weeks from the date of production of a certified copy of this order before the concerned authority of the petitioner-company. In case, the amount is not paid, as directed by this court, the same shall be recovered as arrears of land revenue from the authority concerned.
33. With the above direction, the writ petition is dismissed without any order as to costs.