Factual Matrix of the Case
1. Respondent no.1 was appointed as Bus Conductor in Buduan Depot of the petitioner-Uttar Pradesh State Road Transport Corporation (hereinafter referred to as the "UPSRTC") in the year 1997 and was confirmed on 05.09.1998.
2. On 09.04.2008, the bus No.U.P.25-Q 9475, plying between Budaun to Farrukhabad in which respondent no. 1 was Conductor, was checked by a team of three members while going and coming back. During checking 3 and 13 passengers were found travelling without ticket, respectively.
3. A charge-sheet dated 13.05.2008 was served upon respondent no.1 on 13.05.2008. Shri Z.A. Nomani was appointed as Enquiry Officer, who after conducting enquiry submitted his report dated 23.12.2008. Relevant part of the enquiry report is mentioned hereinafter.
"अधोहस्ताक्षरी द्वारा प्रकरण पत्रावली में उपलब्ध समस्त अभिलेखों का अध्ययन करने पर पाया कि आरोपी द्वारा दिनांक 09-04-08 को बदायूँ-फरुखाबाद मार्ग पर वाहन संख्या यू0पी025क्यू-9475 का उसावाँ में निरीक्षण करने पर 34 यात्री में 03 यात्री बदायूँ से कलान के बिना टिकट पकड़े गये जिनकी धनराशि आरोपी द्वारा पूर्व में वसूल की जा चुकी थी तथा उसी दिवस फरुखाबाद से वापस बदायूँ आते समय नौगवां नामक स्थान पर वाहन का निरीक्षण करने पर 47 यात्री में 13 यात्री बिना टिकट पकड़े गये, जिसमें कुछ यात्रियों के पैसे आरोपी द्वारा वसूल किये जा चुके थे तथा शेष के रिपोर्टकर्ता द्वारा वसूल कर मिर्जापुर से कलान के टिकट निर्गत किये गये। जबकि नौगवां से कलान की दूरी मात्र 02 कि0मी0 थी। इस प्रकार आने व जाने में बिना टिकट वाहन लिखा जाना तथा आरोपी द्वारा साक्षात्कार के समय में कोई गवाह आदि प्रस्तुत न करना, तथा आरोपी द्वारा रिपोर्टकर्ता से साक्षात्कार के समय में पूछा जाना कि वाहन खड़ी थी या चल रही थी। रिपोर्टकर्ता द्वारा उत्तर दिया वाहन को निरीक्षण हेतु संकेत देकर रुकवाया गया, वाहन गतिशील स्थिति में थी। आरोपी द्वारा अपने बचाव में कोई ऐसा सबूत व गवाह आदि प्रस्तुत नहीं किया जो उसके ऊपर लगे गम्भीर आरोपों को कम कर सके।
अतः श्री प्रभु दयाल परिचालक, बदायूँ डिपो के विरुद्ध आरोप पत्र संख्या 1002 दिनांक 13-05-08 में लगे आरोप सिद्ध पाये गये।"
4. A show cause notice dated 07.01.2012, along with a copy of enquiry report was served upon the petitioner, who submitted his reply on 06.02.2013. The Assistant Regional Manager passed order dated 16.02.2013 wherein he found charges against the Respondent No. 1 to be proved and awarded punishment of removal from service and forfeiting arrears of salary of gratuity etc. for the period the respondent No.1 was under suspension.
5. The appeal and revision filed by the respondent no.1 was rejected by orders dated 25.06.2013 and 05.12.2014 by Regional Manager and Managing Director, UPSRTC, respectively.
6. The petitioner raised an industrial dispute before the Labour Court and a reference No.10534-37 CP 23/15 dated 07.10.2016 was referred, which was registered as Industrial Dispute No.15/2016 that:
"क्या श्रमिक श्री प्रभूदयाल पुत्र स्व0 श्री मंगूलाल पदनाम परिचालक की सेवायें दिनांक 16-2-13 से समाप्त करना उचित तथा/अथवा वैधानिक है, यदि नहीं तो संबंधित श्रमिक किस हितलाभ/अनुतोष/क्षतिपूर्ति पाने का अधिकारी है तथा अन्य किस विवरण सहित है।"
7. The Presiding Officer after considering the written statements and oral statements decided the preliminary issue by order dated 17.02.2021 and held that domestic enquiry was not conducted according to due procedure and thus cannot be considered to be valid and legal, and permitted UPSRTC to submit evidence in support of the charge. The said order was not challenged by the UPSRTC and participated in further proceedings. The relevant part of the said order is mentioned hereinafter:
"जांच कार्यवाही में किसी रिपोर्टकर्ता ने न तो उन तथाकथित बिना टिकट यात्रियों को गवाही हेतु प्रस्तुत किया और न ही उनके बयान लिये न ही उन बिना टिकट यात्रियों के नाम व पते प्रस्तुत किये और न ही उनके द्वारा मार्गपत्र पर अपनी रिपोर्ट में उन तथाकथित बिना टिकट यात्रियों द्वारा बयान व नाम पते न देने का कारण ही स्पष्ट किया है। इस प्रकार परिवहन निगम मुख्यालय लखनऊ द्वारा जारी परिपत्रों 446 एलएएस./95 दिनांक 12-3-1996, सं0-71 से से0टि0स्टो/ टी0सी0/ मिस 85 दिनांक 6-2-88, में दिये गये दिशा निर्देशों का पालन नहीं किया गया है।
जांच रिपोर्ट के अवलोकन से यह तथ्य स्पष्ट नहीं हो रहा है कि जांच अधिकारी ने वी0के0पाण्डे के बयान लेने के पश्चात संबंधित श्रमिक को उनसे प्रतिपरीक्षण का अवसर क्यों नहीं दिया एवं मुख्य रिपोर्टकर्ता श्री मनोहर लाल सहायक यातायात निरीक्षक जांच कार्यवाही में उपस्थित नहीं हुए जिसके अभाव में संबंधित श्रमिक को उनसे प्रतिपरीक्षण का अवसर प्रदान नहीं हो सका।
जांच अधिकारी द्वारा प्रस्तुत अपनी जांच रिपोर्ट के समर्थन में वह न्यायालय में उपस्थित नहीं हुए न ही अपनी जांच को प्रमाणित किया है और न ही चेकिंग दल के अन्य सहयोगी व रिपोर्टकर्ता ही जांच रिपोर्ट की पुष्टि हेतु न्यायालय में उपस्थित हुए अतः श्रमिक पर लगाये गये आरोपों के संबंध में करायी गयी घरेलू जांच उचित व वैधानिक नहीं कही जा सकती।
इस प्रकार पत्रावली पर उपलब्ध समस्थ तथ्यों, साक्ष्य एवं विवेचना के आधार पर घरेलू जांच प्राकृतिक न्याय के सिद्धान्तों के अनुरुप की जानी प्रतीत नहीं हो रही है अतः घरेलू जांच दूषित है। तदानुसार प्रारम्भिक वाद बिन्दू निर्णीत किया जाता है।"
8. In further proceedings, Manohar Lal, a member of 3 member checking team recorded his statement before the Labout Court, who did not appear during domestic enquiry. Other member, Roshan Lal, since dead, could not appear in domestic enquiry, though had appeared during domestic inquiry.
9. The Presiding Officer, Labour Cout passed award dated 29.04.2021 and has held that termination of service of respondent no.1 was not legal and directed him to be reinstated with all benefits. The relevant part of the order is mentioned hereinafter:
"इस साक्षी ने अपनी साक्ष्य में यह कहा है कि बस सं0 यू0पी0 25 क्यू 9475 की चेकिंग मैंने की थी। जब मैं चेकिंग कर रहा था तो मेरे साथ सहायक यातायात निरीक्षक बदायूँ श्री रोशन लाल, श्री ए0के0पाण्डे सहायक क्षेत्रीय प्रबंधक बदायूँ थे। श्री रोशन लाल की मृत्यु हो गयी है सेवाकाल के दौरान और यह भी सुना है कि श्री ए0के0पाण्डे साहब की भी मृत्यु हो गयी है। श्रमिक के विरुद्ध आरोप साबित करने के लिये सेवायोजक की ओर से ऐसा कोई साक्ष्य पत्रावली पर नहीं है। मुख्य साक्षी श्री रोशन लाल सहायक यातायात निरीक्षक व श्री ए0के0पाण्डे सहायक क्षेत्रीय प्रबंधक बदायूँ की मृत्यु हो चुकी है इसीलिए श्रमिक के विरुद्ध आरोप साबित नहीं होना पाया जाता है।
उपर्युक्त सम्पूर्ण विवेचन के आधार पर संदर्भादेश इस प्रकार निर्णीत किया जाता है कि श्रमिक श्री प्रभूदयाल पुत्र स्व0 श्री मंगुलाल पदनाम परिचालक की सेवायें दिनांक 16-2-2013 से समाप्त करना उचित तथा/अथवा वैधानिक नहीं है जिसे निरस्त किया जाता है। वादी श्रमिक को दिनांक 16-2-2013 से नौकरी निरन्तरता के साथ सेवा में बहाल किया जाता है एवं दिनांक 16-2-2013 से श्रमिक सेवा में रहते हुए जो भी वेतन भत्ते आदि प्राप्त करता वह सभी वेतन भत्ते आदि को प्राप्त करने का अधिकारी है। प्रारम्भिक वाद बिन्दु पर पारित आदेश दिनांक 17-2-2021 इस अभिनिर्णय का भाग होगा।" (emphasis added)
10. The above referred order/award is impugned in the present writ petition.
Submission on behalf of the petitioner.
11. Shri Avijit Saxena, learned counsel for the petitioner has submitted that reference referred, itself was illegal, as only termination/punishment order dated 16.02.2013 was referred. Neither the order dated 25.06.2013, whereby appeal nor order dated 05.12.2014 whereby revision filed by Respondent no. 1 was dismissed, were part of the reference. Learned counsel has placed his arguments on the basis of "Doctrine of Merger" that only revisional order dated 05.12.2014 remained as operative decision under law and original termination order dated 16.2.2013 and appellate order dated 25.06.2013 got merged with the revisional order dated 5.12.2014. He buttress his argument by relying upon the following judgments. (i) Gojer Bros. Pvt. Ltd. Vs. Ratan Lal Singh (1974) 2 SCC 453, (ii) Collector Customs, Calcutta Vs. East India Commercial Co. AIR 1963 SC 1124 and (iii) S.S.Rathore Vs. State of Madhya Pradesh (1989) 4 SCC 582. Relevant paragraphs No.12, 13 and 14 of S.S. Rathore (supra) are mentioned hereinafter:
"12. The next Constitution Bench decision of this Court is that of Collector of Customs, Calcutta v. East India Commercial Co. Ltd. [1963] 2 SCR 563 where this Court observed :
The question, therefore, turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two case and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three case after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In Jaw, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification.
13. A three Judge Bench decision in the case of Somnath Baku v. The State of Orissa and Ors. (1969)3SCC384 is an authority in support of the position as accepted by the two Constitution Bench judgments referred to above. There, it was held in the case of a service dispute that the original order merged in the appellate order of the State Government and it is the appellate decision which subsisted and became operative in law and was capable of enforcement. That judgment relied upon another decision of this Court in support of its view being C.I.T. v. Amrit lal Bhagilal & Co. [1958] 34 ITR 130 (SC) .
14. The distinction adopted in Mohammad Nooh's case between a court and a tribunal being the appellate or the revisional authority is one without any legal justification. Powers of adjudication ordinarily vested in courts are being exercised under the lay by tribunals and other constituted authorities. In fact, in respect of many disputes the jurisdiction of the Court is now barred and there is a vesting of jurisdiction in tribunals and authorities. That being the position, we see no justification for the distinction between courts and tribunals in regard to the principle of merger. On the authority of the precedents indicated, it must be held that the order of dismissal made by the Collector did merge into the order of the Divisional Commissioner when the appellant's appeal was dismissed on 31.8.1966."
12. Learned counsel also contended that jurisdiction of the Labour Court was barred by the principle of res judicata, since Respondent no. 1 had challenged the validity of his termination in departmental appeal and revision and the appellate and revisional authorities had adjudicated upon the said issue and given their decision, he is barred from raising the same issue before Labour Court being barred by res judicata. Thus proceedings before labour court were without jurisdiction and void. In support of his submission he has relied upon following judgments: (i) Pondicherry Khadi and Village Industries Vs. P Kulothangan & Anr (2004) 1 SCC 68, (ii) District Administrative Committee and another Vs. Presiding Officer, Labour Court, Bareilly, 2008 (4) ADJ 658 and (iii) U.P. State Road Transport Corporation, Kanpur Vs. Mahmood Khan and another, 2007 (4) ADJ 345. Relevant paragraphs No.7,8,9 and 10 of Mahmood Khan, (supra) are mentioned hereinafter:
"7. In my opinion, the reference with regard to the validity and legality of the order of the termination of the respondent No. 2 could not have been referred for adjudication to the labour court. In my opinion, the reference was barred by the principles of res judicata.
8. In Executive Engineer, ZP. Engg. Divn. and Anr. v. Digambara Rao and Ors.: 2004(8) SCC 262, the Supreme Court held that the principles of res judicata squarely applies to an industrial adjudication. In this case, the workman had challenged the validity of his termination order before a writ court and after the dismissal of the writ petition, the workman got the matter referred for adjudication under the Industrial Disputes Act before the labour court and in that scenario, the Supreme Court held that no industrial dispute could have been referred to the labour court and that the principles of res judicata was squarely applicable.
9. In Pondicherry Khadi and Village Industries Board v. P. Kulothangan and Anr.: (2004) 1 SCC 68, the Supreme Court held that the principle of res judicata would operate on a court or tribunal holding-
We are, therefore, of the opinion that the High Court erred in upholding the award of the Labour Court having regard to Section 11 of the Code of Civil Procedure. In this view of the mater, it is not necessary for us to consider the other contentions raised by the appellant. The appeals are accordingly allowed and the decision of the High Court as well as the award of the Labour Court are set aside. However, the appellant will not recover any amount that may have been paid to the respondent under the provisions of Section 17B of the Industrial Disputes Act, 1947. There will be no order as to cost.
10. In view of the aforesaid, once the workmen elects a forum for adjudication of a dispute, it is not open to him to approach another forum at a subsequent stage."
13. Mr. Saxena, learned counsel also submitted that State Government did not form reasoned opinion before making reference and relied upon a judgment passed by Apex Court in Secretary, Indian Tea Association Vs. Ajit Kumar Barat And Ors, (2000) 3 SCC 93.
14. Mr. Saxena, lastly submitted that Labour Court cannot travel beyond reference and he relied upon a judgment passed by Apex Court in Hochtief Gammon Vs. Industrial Tribunal, Bhubaneshwar, AIR 1964 SC 1746, wherein it has been held that Industrial Tribunal is a tribunal of limited jurisdiction and can try only those disputes referred to it through order of reference. It can neither expand the scope of reference nor can travel beyond it as terms of reference determines the scope of power and jurisdiction of tribunal.
Submissions on behalf of Respondent No.1
15. Shri Samir Sharma, Senior Advocate assisted by Shri Aditya Vardhan Singh, learned counsel for the respondent no.1 stated that all the arguments raised by the petitioner are without any pleadings in the writ petition and relied upon paragraph 20 of Union of India and others vs. Dinesh Prasad, 2012 (12) SCC 63, wherein it is held that:
"20. In our view, the learned Single Judge was clearly in error in allowing such argument. Firstly, the argument was raised without any foundation in the writ petition. No plea of actual or likelihood of bias was raised in the writ petition. There was also no plea taken in the writ petition that he was denied fair trial in the course of summary court-martial. Secondly, and more importantly, the learned Single Judge overlooked and ignored the statutory provisions referred to hereinabove. The Division Bench also failed in considering the matter in right perspective and in light of the provisions in the Army Act and the Army Rules."
16. Learned Senior Counsel submits that the reference order was couched in very wide terms, as it did not refer to any order. Instead, it only referred to the date of termination of service of the workman. The appellate and revisional order only confirmed the order of termination of service, however date of termination, remained the same. Thus, according to "doctrine of relation back", the date of termination related back to the original date. Thus there was no infirmity in the reference order. He has relied upon following judgments passed by Supreme Court in R.Thiruvirkolam Vs. Presiding Officer and another, 1997 (1) SCC 9, and Life Insurance Corporation of India and others VS. Central Industrial Tribunal, Jaipur and others, 1997 (1) SCC 59. Relevant paragraphs 4 and 13 of R. Thiruvirkolam (supra) states that:
"4. Reference may be made first to the decision in Kalyani. This point arose directly before the Constitution Bench and such a contention was rejected, making a distinction between a case where no domestic inquiry had been held and another in which the inquiry is defective for any reason and the Labour Court on its own appraisal of evidence adduced before it reaches the conclusion that the dismissal was justified. It was held that in a case where the inquiry was found to be defective by the Labour Court and it then came to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified, the order of dismissal made by the employer in a defective inquiry would still relate to the date when that order was made. In that decision it was stated thus:
...If the inquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made.... In the present case an inquiry has been held which is said to be defective in one respect and dismissal has been ordered. The respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the inquiry. It has succeeded in doing so and therefore the approval of the Labour Court will relate back to the date on which the respondent passed the order of dismissal. The contention of the appellant therefore that dismissal in this case should take effect from the date from which the Labour Court's award came into operation must fail.
13. As a result of the aforesaid decision it must be held that the only point involved for decision in the appeal is concluded against the appellant by the Constitution Bench decision of this Court in Kalyani and the observations to the contrary in Gujarat Steel are, therefore, per incuriam and not binding. The order of punishment in the present case operated from November 18, 1981 when it was made by the employer and not from December 11, 1985, the date of Labour Court's award. The appellant is, therefore, not entitled to any relief."
17. Mr. Samir Sharma, learned Senior Advocate further argued that the Labour Court while adjudicating the matter can consider the issues incidental to/connected with the dispute referred and the actual dispute has to be gauged from the pleadings of the parties. The appellate/revisional order were connected with the dispute referred i.e. validity of termination of the workman w.e.f. 16.02.2013. Thus there was no infirmity in the order of reference and the impugned award. He has relied upon judgments in Syndicate Bank Limited Vs. Workmen, 1966 (2) LLJ 194 (SC); Delhi Cloth & General Mills Co. Ltd. Vs Workmen and others, AIR 1967 SC 469, Western India Match Company Ltd. Vs. Workmen, 1974 (3) SCC 330; Executive Engineer, Electricity Store Division, Gorakhpur and another Vs. Presiding Officer, Labour Court, Gorakhpur and others, 1997 (1) UPLBEC 322 (Alld); J.K. Synthetics Vs. Rajasthan Trade Union Kendra and others; 2001 (2) SCC 87 and Managing Director, A.P. State Road Transport Corporation Vs. Presiding Officer, Industrial Tribunal, Ramkote, Hyderabad and others, 2001 (2) SCC 695. Relevant paragraphs 2 and 7 of Managing Director, A.P. State Road Transport Corporation (supra) are mentioned hereinafter:
"2. In this Court the contentions urged before the Tribunal and the High Court are reiterated that the question referred to the Tribunal being of a limited character as to whether the benefits accruing to the present T.T.D. workers could be extended to the employees of the transport wing or not and having answered that the said employees have all opted for being governed by the Corporation rules and regulations and other service conditions, it is not open to them to claim those benefits.
7. Shri Nageswara Rao pointedly addressed that direction given by the Tribunal is far beyond the scope of the reference. The question referred to the Tribunal though worded as to the cover applicability of conditions of service in T.T.D. to the members of the respondent Union, what was really in issue is as to what conditions of service are applicable to them after they exercised their option to abide by the Corporation regulations, and thereafter both parties have raised pleadings and adduced evidence. Hence, we cannot say that the Tribunal travelled beyond the scope of reference."
18. He further submitted that with the insertion of Section 11-AA (Central Act, 1947)/6 (2-A) of U.P. I.D. Act, 1947, the Labour Court/Industrial Tribunal has been invested with very wide powers to not only adjudicate upon the validity of the departmental enquiry, but also the proof of charges and the proportionality of punishment imposed against the workman. In support of his submission he relied upon Workmen of M/S Firestone Tyre & Rubber Co. of India (P) Ltd. Vs. Management & Others, 1973 (1) SCC 813. Relevant paragraphs of Workmen of M/S Firestone Tyre & Rubber Co. of India (P) Ltd. (supra) are mentioned hereinafter:
"32-A. The above was the law as laid down by this Court as on 15-12-1971 applicable to all industrial adjudication arising out of orders of dismissal or discharge.
33. The question is whether Section 11A has made any changes in the legal position mentioned above and if so, to what extent ? The Statement of objects and reasons cannot be taken into account for the purpose of interpreting the plain words of the section. But it gives an indication as to what the Legislature wanted to achieve. At the time of introducing Section 11A in the Act, the legislature must have been aware of the several principles laid down in the various decisions of this Court referred to above. The object is stated to be that the Tribunal should have power in cases, where necessary, to set aside the order of discharge or dismissal and direct reinstatement or award any lesser punishment. The Statement of objects and reasons has specifically referred to the limitation on the powers of an Industrial Tribunal, as laid down by this Court in Indian Iron and Steel Co. Ltd. Case.
40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference Under section 11A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points, Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11A.
42. Mr. Deshmukh rather strenuously urged that in all its previous decisions, this Court had not considered a breach or an illegality, as he calls it committed by an employer in not holding a domestic enquiry. The learned Counsel urged that this Court has consistently held in several decisions that there is an obligation on the part of an employer to conduct a proper domestic enquiry in accordance with the Standing Orders before passing an order of discharge or dismissal. Hence an order passed without such an enquiry is, on the face of it, illegal. The effect of such an illegal order deprives the employer of an opportunity being given to him to adduce evidence for the first time before the Tribunal to justify his action. These aspects, according to the learned Counsel, have not been considered by this Court when it recognised an opportunity to be given to an employer to adduce evidence before the Tribunal.
50. The legislature in Section 11A has made a departure in certain respects in the law as laid down by this Court. For the first time, power has been given to a Tribunal to satisfy itself whether misconduct is proved. This is particularly so, as already pointed out by us, regarding even findings arrived at by an employer, in an enquiry properly held. The Tribunal has also been given power, also for the first time, to interfere with the punishment imposed by an employer. When such wide powers have been now conferred on Tribunals, the legislature obviously felt that some restrictions have to be imposed regarding what matters could be taken into account. Such restrictions are found in the Proviso. The Proviso only emphasises that the Tribunal has to satisfy itself one way or other regarding misconduct, the punishment and the relief to be granted to workmen only on the basis of the 'materials on record' before it. What those materials comprise of have been mentioned earlier. The Tribunal, for the purposes referred to above, cannot call for further or fresh evidence, as an appellate authority may normally do under a particular statute, when considering the correctness or otherwise of an order passed by a subordinate body. The 'matter' in the Proviso refers to the order of discharge or dismissal that is being considered by the Tribunal."
19. Learned Senior Advocate also submitted that the principle of res judicata is referable to Section 11 of CPC which refers to an issue decided by a Court. The aforesaid principle is not applicable to the facts of the present case, as the order passed by the Regional Manager of the UPSRTC in appeal and the Managing Director in revision, cannot be said to be an order passed by a Court. Section 2-A of the U.P. Industrial Disputes Act, 1947, provides for the termination of service of a workman to be deemed to be an industrial dispute. Hence by operation of law, the termination of the respondent workman was an industrial dispute, and the rejection of appeal/revision would make no difference.
20. Lastly, he submitted that it is not open for the petitioner to challenge the order referring the dispute to the Labour Court, without there being any pleadings/relief in that respect in the writ petition. He has relied upon Bharat Singh & Others Vs. State of Haryana & Others, (1988) 4 SCC 534, and submitted that in any case, once the termination of service of the respondent workman was deemed to be an industrial dispute, (under section 2-A of the U.P. Industrial Disputes Act, 1947), no reasons were required while referring the dispute. Relevant paragraph 13 of Bharat Singh & Others (supra) is mentioned hereinafter:
"13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the CPC and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."
Discussion and Conclusion
21. Heard the learned counsel for the parties, perused the record and written submissions filed by parties.
22. The reference was only to consider whether the respondent no.1 was legally terminated on 16.02.2013, i.e. the termination order. According to ''theory of merger' order of termination and order passed by appellate authority got merged into order passed in revision, which upheld the order of termination however, the respondent no.1 would be considered to be terminated from service with effect from 16.02.2013 only, therefore according to doctrine of ''relation back' the relevant date would be 16.02.2013 for termination and not the date when appeal and revision were dismissed. In Kunhayammed & Ors Vs. State of Kerala and another, (2000) 6 SCC 359, the Supreme Court has held that "the doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or capable of being laid shall be determinative of the applicability of merger."
23. In the present case, domestic enquiry and Labour Court are not in one line of forum. Therefore, doctrine of merger would not come into play. In case, order passed in domestic enquiry was challenged before High Court prior to reference, then issue of res judicata would also be very important as held in Mahmood Khan (supra) but in the present case Respondent no. 1 has not challenged his termination order or the orders passed in appeal and revision before the High Court. Therefore, the judgment in Mahmood Khan (supra) would not be applicable in the present case.
24. District Administrative Committee (supra) was a case under U.P. Cooperative Societies Act, 1965, where statutory remedy was available in the relevant Act. However, it was not the case in hand, therefore, res judicata would not be applicable. Relevant paragraphs no. 12 of said judgment is mentioned hereinafter:
"12. There is yet another facet to the issue. Admittedly the workman had availed the statutory remedy of appeal which has been decided against him. This decision would act as res judicata and therefore, the Labour Court could not have proceeded with the reference. The Apex Court in the case of Pondicherry Khadi and Village Industries Board v. P. Kulothangan and Anr. 2003 (99) FLR 1175, has held that where the issue was substantially the same in earlier proceedings and has been decided by the competent authority, even though the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of Section 11 C.P.C. including the principles of constructive res judicata will apply."
25. The Labour Court has decided the reference only which was referred to it and it has not travelled beyond it. Since it came to the conclusion that domestic enquiry was not fairly conducted, it called the employee/petitioner to led evidence to prove charges against the respondent no.1, which it found to be insufficient as the person who actually inspected the bus could not appear before the Labour Court since he was dead and there was no other evidence to prove that inspection of bus was conducted.
26. The argument of counsel for the respondent no.1 that the argument raised by the learned counsel for the petitioner are being not supported by the pleadings has also some force, though legal issue could be raised at any time still it should be followed from the pleading.
27. Recently, the Apex Court in State of Uttrakhand Vs. Sureshwati, 2021 (3) SCC 108 has relied upon paragraphs no.40 and 41 of the judgment passed in the case of Workmen Vs. Firestone Tyre & Rubber Co. of India (P) , (1973) 1 SCC 813, wherein it was held that:
"40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A ."
28. In view of the above discussions, the reference is not hit by "doctrine of merger", or by "res judicata". The reference was rightly referred to Labour Court. The Labour Court considered the inquiry report and came to the conclusion that domestic enquiry was faulty/irregular. The most crucial and relevant evidence of Mr. Roshan Lal, who conducted inspection of the bus was neither recorded during domestic enquiry nor before the Labour Court (due to his death). There was no other evidence with the petitioner-UPSRTC, which could prove the inspection of the bus and thus the termination order of the Respondent No. 1 was bad on facts as well as on law. No other point was argued by the petitioner. Therefore, there is no illegality in the impugned Award, on law as well as on facts.
29. The writ petition is accordingly dismissed.
Order Date :- 28.10.2021 SB/AK