JUDGMENT Aloke Chakrabarti, J.
1. The workman has challenged the impugned award whereby penalty imposed upon the petitioner in a disciplinary proceeding was not interfered.
2. The employer-respondent filed a counter-affidavit.
3. After hearing the learned counsel for the parties, I find that two contentions have come up for consideration.
4. The points argued for consideration are whether punishment imposed upon the petitioner was disproportionate to the charges levelled and whether the Tribunal ought to have applied the provision of Section 11A of the Industrial Disputes Act as was sought for on behalf of the workman and was refused by the Tribunal.
5. Learned counsel for the petitioner contended that in the present case in respect of an incident dated 26.8.1969 charge-sheet was issued on 27.8.1969 and upon completing a departmental enquiry, the petitioner was found guilty and hence his services were dispensed with. On a dispute having been referred to at the instance of the petitioner, reference was made on 19.11.1974 and was finally decided by award dated 2.5.1978. It is stated on behalf of the petitioner that Section 11A of the Industrial Disputes" Act (hereinafter referred to as Central Act) was very much available when reference was made and during the pendency of reference on 5.10.1978 a similar provision had been introduced as Section 6 (2A) of U. P. Industrial Disputes Act, 1947 by amending Act No. 34 of 1978. The contention of the petitioner is that in view of aforesaid position, the Tribunal ought to have exercised the power under Section 11A of the Central Act as on the date of passing the award both the said provisions of law were available. In support of such contention, learned counsel for the petitioner relied on the judgment in the case of Rama Kant Misra v. State of U. P.. 1982 Lab IC 1790 (SC) : Workmen of the Straw Board Manufacturing Co. Ltd. v. M/s. Straw Board Manufacturing Co. Ltd,. AIR 1974 SC 1132 and the case of Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v-State of Tamil Nadu and others, 11996) 3 SCC 15.
6. On behalf of respondent-employer, it has been stated that the provision of Section 11A was rightly not applied by the Tribunal as said provision of the Central Act could not be applied in respect of a proceeding under the said Act when admittedly the said provision was not available in the State Act itself. In support of such contention, learned counsel for the respondent employer made reference to the case of Workmen of Firestone Tyre and Rubber Co. v. Management and others, AIR 1972 SC 1277 ; Vishnu Das v. State of U. P. and others, decided by Full Bench in 1974 ALJ 591 : New Shorrock Mills v. Maheshbhai T. Rao, (1996) 6 SCC 590 ; U. P. State Road Transport Corporation and others v. A. K. Parul, JT 1998 (7) SC 203 and the case of U.P.S.R.T.C. and others v. Har Narain Singh and others, JT 1998 (7) SC 437.
7. With regard to other contention of the petitioner, it has been contended on behalf of the respondent-employer that with regard to question of disproportionate penalty, the Tribunal already reached a finding on facts that the penalty was not shockingly disproportionate to the charges levelled and therefore no interference is required.
8. After considering the aforesaid contentions, I find that with regard to applicability of law when admittedly there are different statutes available, one Central and the other Slate Act. the provision of Article 254 of the Constitution of India ts required to be considered and the same runs as follows. :
"254. (1) if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the concurrent list. then, subject to the provisions of clause (2). the law made by Parliament, whether passed before after the law made by the Legislature of such State, or. as the case may be. the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnant, be void.
(2) Where a law made by the Legislature of a State. With respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such Slate shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State :
Provided that nothing in this clause shall prevent Parliament from enacting at any time with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
9. This law came for consideration in respect of a local law-of Tamil Nadu in the case of Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamlgal Medical Education and Charitable Trust (supra). The Apex Court while considering two legislations held as follows :
"26. It cannot, therefore, be said that the test of two legislations containing contradictory provisions is the only criterion of repugnance.
Repugnancy may arise between two enactments even though obedience to each of them is possible without disobeying the other if a competent Legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field."
In the said case, it was further held that "the fact that the State Act has received the assent of the President would be of no avail because the repugnancy is with the Central Act which was enacted by Parliament after the enactment of the State Act."
10. While considering the law as contained in Section 25FFF of the Central Act of Industrial Law in respect of the claim of it s application in the State Act of Industrial law prevailing in the State of Uttar Pradesh, the position was considered by a three member Bench in the case of Workmen of the Straw Board Manufacturing Co. Ltd. (supra) and it was held therein as follows :
"29. The next crucial question that will then arise for consideration is whether the concerned employees are entitled to relief under Section 25FF of the Central Act since there is no similar provision in the U. P. Act. Mr. Chitaley, as stated earlier, at first disputed that the employees can invoke the provisions of Section 25FFF, although, finally abandoned that position. Since the U. P. Act does not make any provision for compensation in the case of closure and the Central Act has supplied the lacuna. there is no repugnancy between the U. P. Act and the Central Act and the beneficent provisions of the latter Act can be availed of by labour even in their absence in the U. P. Act. The Central Act applies to the whole of India, including U. P. Even if there may be the slightest doubt in the matter, Section 25J of the Central Act advisedly leaves no scope for controversy in the matter. We will, therefore, read Section 25FFF of the Central Act which clearly applies in the present case."
11. In the case of Rama Kant Misra (supra) also provision of Section 11A of the Central Act was held applicable although the proceeding arose out of an award passed by the Labour Court of Uttar Pradesh in respect of an employee under the State of Uttar Pradesh.
12. Therefore, in view of the above explanation as regards provision of Article 254 of the Constitution as made in the case of Thirumuruga Kirupananda Variyar Thavathini Sundara Swamigal Medical Education and Charitable Trust (supra) and the findings of Apex Court as regards application of provisions of Central Act presently under consideration in respect of U. P. State Act in the case of Workmen of the Straw Board Manufacturing Co. Ltd. (supra), I am of the opinion that Section 11A incorporated with effect from 15.12.1971 in the Central Act remained applicable in respect of a proceeding under the State Act even before incorporation of Section 6 (2A) of the State Act. The findings of Full Bench in the case of Vishnu Das (supra) cannot be made applicable in respect of the present aspect on applicability of provision of Section 11A as in the said Full Bench judgment, findings of the Apex Court in the case of Workmen of the Straw Board Manufacturing Co. Ltd. (supra) decided on 21.3.1974 by three Hon'ble Judges was not considered though the judgment of the Full Bench appears to have been passed on 24.5.1974.
13. The said judgment of three members Full Bench in the case of Vishnu Das (supra) also came for consideration by the five members Full Bench of Lucknow Bench of this Court in Writ Petition No. 1910 of 1981, Hindustan Sugar Mills Ltd. v. State of U. P. and others where majority judgment observed as follows :
"The case of Vishnu Das, therefore, does not lay down correct criteria for the application of provision of either of the two Acts."
The above view gets further support from the judgment in the case of Smf. Pushpa Agarwal v. Regional Inspectress of Girls Schools. Meerut and others, 1995 (70) FLR 20, wherein a Division Bench of this Court following the aforesaid Full Bench judgment in the case of Hindustan Sugar Mills Ltd. (supra) held that the provision of Section 2(OO)(bb) of the Central Act is applicable in respect of State Act though such a clause was not inserted in the State Act.
14. In the case of Krishna District Co-operative Marketing Society Limited v. N. V. Pumachandra Rao and others, (1987) 4 SCC 99, the question came up for consideration as to whether Section 25F of the Central Act is to be applicable in the proceeding under the Uttar Pradesh Shop and Establishment Act. It was held by the Apex Court that special provision of the Central Act contained in Chapter VA would apply and that in proceedings initiated under the said State Act the rights and liabilities created under the Central Act can be adjudged and relevant observations are as follows :
"The result of the above discussion is that if the employees are 'workmen' and the management is an 'industry' as defined in the Central Act and the action taken by the management amounts to 'retrenchment' then the rights and liabilities of the parties are governed by the provisions of Chapter VA of the Central Act and the said rights and liabilities may be adjudicated upon and enforced in proceedings before the authorities under Section 41 (1) and Section 41 (3) of the State Act."
15. With respect to the judgment in the case of A. K. Parul (supra). I find that the observations were made therein as' the High Court in the said case set aside the removal order holding it to be disproportionate though charges were held to be proved and the Apex Court gave a finding that such power lies with the disciplinary authority or appellate authority and the High Court or Administrative Tribunal does not have such power.
16. Similarly, in the case of Har Narain Singh (supra), the High Court's judgment was set aside holding that the High Court could not interfere with the Judgment of Service Tribunal upon reappraisal of evidence. It amounted to exceeding-jurisdiction.
17. In the case of New Shorrok Mills (supra), jurisdiction under Bombay Industrial Relations Act was being considered and a decision of two members Bench, in the said fact, is not to overrule the law decided by a three member Bench of Apex Court in respect of Central Act and the State Act which are also under consideration in the present fact.
18. In view of the aforesaid legal position, as the Apex Court's finding in the case of Workmen of the Straw Board Manufacturing Co. Ltd. (supra), supports application of provision of Central Act when similar provision is not available in the State Act, same remains binding on this Court and the finding of Full Bench in the case of Vishnu Das (supra), in respect of applicability of Section 2A of the Central Act in respect of a proceeding under the State Act, does not become applicable. Therefore, the finding of the Tribunal in the present case as regards non-application of provision of Section 11A is required to be quashed.
19. With regard to the findings of Labour Court that the punishment imposed was not shockingly disproportionate. I am of the opinion that in view of the law laid down in the case of Bhagat Ram v. State of H. P.. AIR 1983 SC 454 ; Ranjit Thakur v. Union of India, AIR 1987 SC 2386 ; Ex Naik Sardar Singh v. Union of India, AIR 1992 SC 417 ; Union of India v. Girija Sharma, AIR 1994 SC 215 and B. C. Chaturuedi v. Union of India, AIR 1996 SC 484 and in view of the incidents alleged were outside the factory premises, a finding has to be reached applying Section 11A of the Central Act.
20. In view of the aforesaid findings, the impugned award (Annexure-1 to the writ petition) is hereby set aside and the matter is sent back to the Tribunal concerned for fresh decision in accordance with law within a period of four months from the date of production of certified copy of this judgment. This writ petition is thus allowed.