After the respondent's services were terminated on 31.5.2000 while working as a Conductor with the petitioners consequent to a full fledged departmental enquiry, the respondent no.1 raised an industrial dispute which was referred by the State Government on 18.5.2004. The reference was as follows:
"D;k lsok;kstdksa }kjk vius Jfed Jh jktsUnz dqekj 'kekZ iq= Lo0 Jh lqjs'k pUnz 'kekZ ¿ifjpkydÀ dh lsok,a fnukad 31&05&2000 ls lekIr fd;k tkuk [email protected]@vFkok oS/kkfud gS] ;fn ugha rks lEcfU/kr Jfed D;k [email protected] ikus dk vf/kdkjh gS rFkk fdl fooj.k lfgr\ß When the reference was answered in favour of the workman/respondent on 3.1.2009 and was ordered to be reinstated with 50 percent back wages, the petitioner filed the instant writ petition.
Learned counsel for the petitioner, Sri S.K. Mishra submitted that the Labour Court being a Court of Reference was bound to answer the reference only to the extent the reference was made. He could not have travelled beyond it. It had only to find out as to whether the termination as was done by the order dated 31.5.2000 was proper and if it was found that it was wrongly done then it had to be given out as to what relief the respondent no.1 was entitled for. In this regard he relied upon 2004 (101) FLR 219 (SC) (Mukand Ltd. vs. Mukand Staff and Officers' Asssociation). In this judgment as the counsel specifically read out paragraph-24 the same is being reproduced here as under :
"24. We have already referred to the order of Reference dated 17.2.1993 in paragraph supra. The dispute referred to by the order of Reference is only in respect of workmen employed by the appellant-Company. It is, therefore, clear that the Tribunal, being a creature of the Reference, cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of Reference. In the facts and circumstances of the present case, the Tribunal could not have adjudicated the issues of the salaries of the employees who are not workmen under the Act nor could it have covered such employees by its award. Even assuming, without admitting, that the Reference covered the non-workmen, the Tribunal, acting within its jurisdiction under the Act, could not have adjudicated the dispute insofar as it related to the ' non-workmen."
It was submitted by the learned counsel that when the Labour Court without deciding as to whether the order terminating the respondent no.2 was proper proceeded to find that the respondent-workman was innocent as had reimbursed the amount which was to be taken from the 34 passengers, the award was definitely beyod the reference. Learned counsel for the petitioner further submitted that as per the settled law when it is found that a Conductor of a bus does not work honestly and is involved in corruption then there could not be any other punishment other than dismissal. The fact that the amount misappropriated was small or large was not material. In this regard the petitioner relied upon AIR 1996 SC 1249 (Municipal Committee, Bahadurgarh vs. Krishnan Bihari & Ors.) Learned counsel further has also relied upon the judgments reported in 2005 (3) SCC 254 (Divisional Controller, KSRTC (NWKRTC) vs. A.T. Mane), 2002 (9) SCC 644 (Devendra Swamy vs. Karnataka State Road Transport Corporation), AIR 2008 SC 3060 (North West Karnataka Road Transport Corporation vs. H.H.Pujar, AIR 2009 SC 2528 (Divisional Manager, Rajasthan S.R.T.C. vs. Kamruddin and 2011 (3) UPLBEC 1979 (Uttar Pradesh State Road Transport Corporation, Jhansi vs. Presiding Officer, Labour Court (4), Kanpur) and has submitted that once a Conductor is found guilty of carrying passengers without proper tickets then no interference is warranted with the punishment. Another submission the petitioner's counsel made was that after the departmental enquiry was undergone and the respondent's services were terminated, the respondent did not take recourse to the departmental remedies of appeal and revision and after having waited for full four years raised an industrial dispute in the year 2004 and therefore he submits that the reference was also a stale one and relying upon a decision of Supreme Court reported in (2009) 13SCC 746 (State of Karnataka and another versus Ravikumar) submitted that a delay in seeking reference would render the reference bad. Learned counsel in the end submitted that when on 3.1.2007, a preliminary issue was decided in favour of the employers that the departmental enquiry conducted by the department was fair and proper then no further observations should have been made by the Labour Court. Learned counsel to bolster his submission has read out paragraph-12 of the writ petition and the same is being reproduced herein as under :
"12. That on basis of the pleadings of the parties, the Labour Court framed a preliminary issue as to whether the departmental enquiry conducted against respondent no.1 was fair and proper. Thereafter, the Labour Court declared the said preliminary issue in favour of the employer Corporation, and against respondent no.1.
He submitted that in the counter affidavit of the workman in paragraph-4, the contents of paragraph-12 of the writ petition had not been denied. Learned counsel for the petitioner read out paragraph-4 of the counter affidavit which is reproduced herein as under:
"4. That the contents of paragraph no. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the writ petition are matters of record and the same may be verified with the record."
In reply, the learned counsel for the workman submitted that the scope of judicial review in matters where orders of Tribunals are under challenge is very limited. He pointed out that no interference in the findings as had been arrived at by the Tribunal was warranted and to bolster his submission relied upon the decision reported in 2015 (12) SCC 754 (Gauri Shanker vs. State of Rajasthan).
Since the learned counsel for the respondent read out paragraph-23 and 24 of the judgment, the same are being reproduced here as under:
"23. The learned Singe Judge of the High Court has exceeded his jurisdiction under Articles 226 and 227 of the Constitution of India as per the legal principles laid down by this Court in Harhinder Singh v. Punjab State Warehousing Corporation wherein this Court has held thus:
"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that:
"10.....the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.
(State of Mysore v. Workers of Gold Mines (AIR 1958 SC 923) page 928, para 10)"
The said principle has been reiterated by this Court in Jasmer Singh v. State of Haryana ((2015) 4 SCC 458 : (2015) 2 SCC (L&S) 46) "24. Therefore, in view of the above said case, the learned single Judge in exercise of its powers under Articles 226 and 227 of the Constitution of India erroneously interfered with the award of reinstatement and future salary from the date of award till date of reinstatement as rightly passed by the Labour Court recording valid and cogent reasons in answer to the points of dispute holding that the workman has worked from 1.1.1987 to 1.4.1992 and that non-compliance of the mandatory requirements under Sections 25F, 25G and 25H of the Act by the respondent-Department rendered its action of termination of the services of the workman as void ab initio in law and instead the High Court erroneously awarded a compensation of Rs.1,50,000/- in lieu of reinstatement. The learned single Judge and the Division Bench under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down in catena of cases by this Court."
Further learned counsel for the workman submitted that the award was a very equitous one and no interference was warranted. He submitted that the enquiry was conducted in the most slipshod manner and the same had to be rejected and since the workman had no faith in the department, he did not avail the departmental remedies.
Having heard the learned counsel for the parties, I am of the view that the Labour Court definitely exceeded its jurisdiction when it decided the case beyond the reference which was sent to it. The reference was to decide as to whether the order of termination dated 31.5.2000 was legal. Instead, the Labour Court has decided the case on the basis of misplaced sympathy. Just because the workman/Conductor had deposited the amount which was due from the 34 passengers he cannot be exonerated and reinstated with full back wages. This was palpably erroneous. Dishonesty by a public employee cannot be tolerated. The award dated 3.1.2009 is thus palpably erroneous and is set aside.
The writ petition is allowed.
Order Date :- 28.2.2018 Ashish Pd.