S.S. Nijjar, J.@mdashThis petition under Articles 226/227 of the Constitution of India seeks issuance of a writ of certiorari quashing the Award
Annexure P-1 dated 23.3.1998, made by respondent No. 1.
2. Briefly stated that facts as pleaded and narrated by the Ld. Sr. Counsel for the parties may be noticed.
3. The petitioner was appointed as operator in the Frame Assembly Department of M/s Hero Honda Motors Ltd. Delhi Jaipur Highway,
Dharuhcra, Distt. Rewari (respondent No. 2), on 25.8.1986. He was in service of respondent No. 2 from 25.8.1986 to 11.9.1989. The petitioner
is stated to be an enthusiastic trade union worker. He is alleged to have been victimised on account of his enthusiastic trade union activity which
was legitimate and within the permissible parameters of law. The service of the petitioner were terminated by means of an order of dismissal from
service dated 8.8.1989. This order was not served on the petitioner. The order was passed without serving any charge-sheet or affording any
opportunity of hearing to the petitioner. No domestic enquiry was held against the petitioner prior to the passing of the order of dismissal,
4. According to the petitioner, the genesis of the whole dispute started in July 1989 when a proposal was mooted within the Labour Union of
Workers of respondent No. 2 that their Union should be affiliated to the Hind Mazdoor Sabha. This was not relished by respondent No. 2. The
Union of workmen of respondent No. 2 had taken a collective decision after due deliberation to officially affiliate the Labour Union with Hind
Mazdoor Sabha on 18.7.1989. On that date, a flag of the Hind Mazdoor Sabha was to be hoisted alongwith the Union Flag at the main gate of
factory of respondent No. 2. Therefore, on 15.7.1989 to prevent the hoisting of the flag, respondent No. 2 got the President of the Labour Union
and other Trade Union leaders arrested on false charges. As a result of these arrests the date of affiliation was postponed to 23.7.1989 which was
Sunday and a weekly off-day of the majority of the workmen of respondent No. 2. In order to stall the affiliation respondent No. 2 concected
various episodes of mis-conduct against the petitioner and other active trade union workers on 15th of July, 17th of July and 19th of July, 1989.
By misusing their influence with the local police, respondent No. 2 got a proclamation u/s 144 Cr. P.C. also issued in Dharuhera on 23.7.89 which
banned the assembly of more than five persons at any place within Dharuhera. Additionally, a large number of police was deployed on 23.7.89
inside the factory of respondent No. 2 as well as outside. In the same scheme of events, respondent No. 2 had got a false and concocted FIR
registered against the petitioner and 18 other workmen on 19th of July, 1989. In that case, the prosecution evidence has not been completed due
to dilatory tactics adopted by respondent No. 2. The petitioner and other workmen are being prosecuted under Sections 147, 323, 149 and 506
IPC. According to the petitioner, the orgy of victimization of the petitioner has been continued by respondent No. 2 with unabated ruthlessness by
taking the extreme step of dismissal from service on concocted charges without holding a domestic enquiry inspite of the fact that no special
circumstances , as envisaged by Standing Order No. 31.12 existed to render holding of domestic enquiry not feasible. There is a provision in
Certified Standing Orders of respondent No. 2 for suspending a delinquent workmen in Clause 31.3. The Management deliberately did not
exercise the power of suspension. Instead the petitioner was ordered to be dismissed from service by an order dated 8.8.1989, without issuing any
charge-sheet or holding a departmental enquiry. The petitioner served a demand notice on 8.11.1989. In the meantime, the Union had entered into
a settlement with the Management of respondent No. 2 on 11.9.1989. Relevant part of Clause 6 of the settlement is as under :-
6. Both the parties agreed that 14 workmen against whom there are charges of serious misconduct have been dismissed from the services of the
company and 40 workmen against whom there are charges of misconduct have been suspended and disciplinary action against whom would
continue. With the exception of these 54 workmen, rest of workmen, whose names were on the muster roll of the company will report on work on
11th September, 89.
5. There is some controversy between the learned Sr. Counsel for the parties as to whether this Clause amounts to acceptance of the fact that 14
workmen against whom there are charges of serious misconduct have been legally dismissed. Accordingly to the Ld. Sr. Counsel for the petitioner,
this Clause records the fact that 14 workmen have been dismissed. According to the Ld. Sr. Counsel for respondent No. 2, it amount to
acceptance of the fact that 14 workmen including the petitioner have been lawfully dismissed. The demand notice was rejected on 31.7.1990 on
the ground that it was a part and parcel of the settlement between the Management and the Union dated 11.9.1989 and that criminal case is
pending against the dismissed workmen. The petitioner alongwith others challenged the aforesaid Settlement by filing writ petition, namely CWP
No. 13479 of 1989. The writ petition was dismissed by the Court holding that the settlement cannot by challenged by way of writ petition.
Subsequent to this, the settlement has become final. The petitioner also filed CWP No. 15278 of 1990 challenging the order rejecting the demand
notice. The writ petition was dismissed by the learned Single Judge by order dated 4.2.1994. The petitioner filed Letters Patent Appeal No. 294
of 94 against the aforesaid order. By order dated 28.9.1994, the LPA was allowed and the respondent-State was directed to make a reference
before the Industrial Tribunal-cum-Labour Court u/s 10(1) of the Industrial Disputes Act. On 28.11.1994, the Government referred the matter for
adjudication to the Industrial Tribunat-cum-Labour Court, Gurgaon (hereinafter referred to as ""the Tribunal""). On 24.3.1995, the petitioner filed
statements of claim. On 8.6.1995 respondent No. 2 filed the written statement. On 27.1.1995, the petitioner made an application for interim relief
before the Tribunal claiming subsistence allowance. This was rejected by order of the Tribunal in CWP No. 4457 of 1996 on 23.3.1996. The writ
petition was disposed of on 23.7.1997 with a direction to the Tribunal to decide the dispute within six months.
6. The dispute referred to the Tribunal was as follows:-
Whether termination of services of Sh. Anil Kumar is justified and if not what relief he is entitled to.
After completion of the pleadings, the Tribunal framed the following issues on 5.4.1986:-
1. As per terms of reference.
7. Before the Tribunal it was argued that the petitioner has been victimised due to his trade union activities. He was got arrested by the Manager by
lodging a false complaint with the police on 20.7.1989. Settlement brought about between the workmen and the Management on 11.9.1989 is
false, fictitious and forcibly procured by the Management and approved/signed by the officer of the Labour Court without examining the fairness
and reasonableness of arbitrary and unilateral terms of the settlement. Several other similarly situated workmen have been taken back on duty by
the Management and thereby the petitioner has been discriminated against in violation of Article 14 and 16 of the Constitution of India. It is also
argued that the evidence led by the Management cannot he relied upon as there were many discrepancies in the statements of the witnesses
produced. It was further argued that even if the order of dismissal is upheld, the petitioner is entitled to wages upto the date of award. The
Management-respondent No. 2 pleaded that the services of the petitioner have been terminated on account of his committing serious acts of
misconduct such as abusing and beating superior officers, threatening them of dire consequences, making inflammatory speeches, preaching
violence, use of force against Management executives, man-handling his superiors with the help of his other colleagues, instigating co-workmen to
resort to strike and violating the terms of settlement dated 22.8.1987. The petitioner was dismissed from service through a composite order
containing charges and narrating circumstances created by him, due to which it had become impossible to hold a domestic enquiry. The dismissal
order is asserted to be in conformity with the certified standing orders of the Management. The activities of the petitioner were neither constitutional
nor peaceful. The petitioner was offered to collect his legal dues, but he refused to do so. Settlement dated 11.9.1989 is binding on all the workers
including the petitioner. It was also pleaded that according to the certified Standing Orders, the Management has right to justify its action by
producing evidence before the Court. On the basis of the judgment given in the case of Punjab Dairy Development Corporation v. Kala, 1997(3)
RSJ 369, it was argued that when a Labour Court on the basis of evidence by it, holds that enquiry was not held properly, but on the basis of
evidence recorded by it, upholds the order of dismissal, then the order of dismissal would relate back to the date of dismissal and not from the date
of award. The Management had also relied on the judgment of the Supreme Court in the case of R. Thiruvirkolam v.. The Presiding Officer and
Anr. 1997(1) RSJ 415 in support of the above argument. The Management examined six witnesses in support of its case and placed reliance on
31 documents. The petitioner produced four witnesses and relied on as many as 49 documents.
8. In the composite order, after setting out the various misconducts, it is stated as follows:-
In the interest of discipline, industrial peace, safety and to avoid violence, recurrence of large dimensional indiscipline, unrest and the fact that you
in connivance with your other colleagues have been preaching violence and have created fear psyche in the minds of the duty conscious employees
we are, therefore, convinced that your dismissal from service of the establishment will meet the ends of justice, and would proportionate to the
gravity of acts of misconduct committed by you as no mitigating circumstances exists. Accordingly, you are dismissed from service with immediate
effect.
Due to the above circumstances created by you it has become impossible to hold a formal domestic inquiry into above acts of misconduct and the
circumstances. However, this order is being issued after application of mind, considering the entire circumstances and the management is convinced
about your commissions and the gravity of the same.
Should you like to challenge this order of dismissal before any competent authority, the management reserves its right to prove the circumstances
and the acts of misconduct before the competent authority both orally and with documents as considered appropriate to prove the above charges
and justify action of the management.
9. The petitioner is stated to be an activist in the Trade Union Affairs. However, he was not an office holder of the Union. 10. The Award of the
Labour Court is challenged on a number of grounds. It is stated that the services of the petitioner were terminated by order of dismissal dated
8.8.1989 which was never served upon him. However, at the time of arguments, this ground is not pressed by the learned Sr. Counsel for the
petitioner. The second ground on which the Award has been challenged is that in the absence of domestic enquiry preceding the order of dismissal,
the same can not relate back to the date of its passing and can be made effective only from the date of the Award. However, Mr. Mittal has
pointed out that aforesaid proposition of law has, in fact, been referred to constitution Bench in the case of Vishweshwaraiah Iron & Steel Ltd. v.
Abdul Gani and Ors. 1998 (1) RSJ 69. Therefore, learned Sr. counsel appearing for the petitioner has not pressed this point. The point mainly
urged on behalf of the petitioner is that the Labour Court erred in law by not adjudicating upon the justifiability or otherwise of the reasons
recorded by the Management, in support of the order dispensing with the domestic enquiry. This finding according to Mr. Mittal, is recorded by
the Labour Court in paragraph 10 of the Award. In support of this proposition learned Sr. counsel has relied on the judgment of the Supreme
Court in the case of Chief Security Officer and Others Vs. Singasan Rabi Das, (hereinafter referred to as Singasan''s case) learned counsel also
relied upon a Division Bench judgment of this Court in the case of Swaran Singh v. Punjab State Electricity Board 2000(2) RSJ 578. It has also
been strenuously urged on behalf of the petitioner that the findings returned by the Labour Court in the impugned Award are perverse having been
rendered after ignoring the relevant piece of evidence tending to show that signatures of K.R. James on the complaints dated 15.7.1989 and
19.7.1989 have been forged. According to the learned Sr. counsel the signatures of Mr. K.R. James have been forged subsequent to the time of
his death sometime in the year 1990. An application was made before the Labour Court for production of the original complaint on 11.3.1998. No
order was passed in this application. According to the learned Sr. counsel for the petitioner, the complaints were never produced on the record.
Learned Sr. Counsel has also attacked the finding returned by the Labour Court as being contrary to the evidence on record. It has been pointedly
urged that the Labour Court has erred in law in not relying on the evidence of the expert handwriting witness WW1-Sh. Yash Pal Jain with regard
to charge No. 1. The finding is challenged on the basis that the Labour Court had totally ignored the evidence of forgery. According to the learned
Sr. counsel, a comparison of original signatures of Mr. K..R. James with the signatures on the complaints would clearly establish that the signatures
jn the complaints have been forged. To get over this hurdle, the Management has also got the complaints subsequently signed by Mr. K.D.
Sharma. Mr. Mittal has also pointed out certain other circumstances which would make evidence of the Management unbelievable. Charge No. 1
states that the petitioner alongwith some other workers have broken the lock of Reduction gear box with hammer. While giving oral evidence the
witnesses have spoken only of iron rod. Further, if there had been break down of the gear box, the same would have been recorded in the log
book. Witness No. 5-Sh.B.K. Srivastava has not been mentioned in the complaint. It is further submitted that the same arguments would apply
with regard to charge No. 3 at all. With regard to charge no, 2, it is sought to be argued that since the petitioner does not belong to the concerned
department, there was no question of his confronting any of the Officers on behalf of his friends. With regard to charge No. 4, it is stated that the
findings returned by the Labour Court are conflicting in nature. According to the learned counsel they do not make any sense at all. Apart from
this, the learned senior counsel has also argued that under Standing Order 31.3, the petitioner could have been suspended during the pendency of
the departmental enquiry. Deliberately the Management dismissed him without any justification. This fact alone would have been sufficient to hold
that the dismissal of the petitioner without a Domestic Enquiry was not justified.
10. In reply, Mr. Sarin submitted that the Settlement dated 11.9.1989 is binding on the petitioner and the other workmen who had been dismissed.
Therefore, the present writ petition itself is not maintainable. It is further submitted that the petitioner has indulged in a series of grave acts of
misconduct. He is alleged to have physically assaulted the senior officers of the Company. He is alleged to have made inflammatory speeches
against the Company. He is alleged to have used very derogatory language against the Officers. Consequently, the Management was left with no
option but to dismiss him from service with immediate effect. Learned counsel further submits that the Management was justified in taking such a
course under Standing Order 31.12. It is for this reason, the charges were mentioned in the impugned order. Specific reasons were also assigned
as to why it was not feasible to hold the domestic enquiry. However, the management had reserved its right to justify the action before the
competent authority. Certified Standing Orders having been made under the Industrial Employment (Standing) Orders Act, 1946 have force of
law. The Certified Standing Orders (hereinafter referred to as the Standing Orders) have been duly certified by the competent authority. Therefore,
these orders would constitute conditions of service of the entire work force. In support of this submission, the learned Senior counsel has relied on
a judgment of the Supreme Court in the case of Bharat Petroleum Corporation Ltd. Vs. Maharashtra General. Kamgar Union and Ors, . Learned
Sr. Counsel further submits that the petitioner has hardly three years service to his credit. He has managed to drag the company into litigation for
the past 12 years. His effort to obtain any interim relief have not succeeded. The petitioner had made an application for interim relief claiming
subsistence allowance before the Labour Court. This application was dismissed. Against the interim award, the petitioner has filed CWP No. 4457
of 1996. This petition was dismissed with the direction that the dispute be decided within a period of six months. The petitioner is also stated to be
facing criminal proceeding which have however, been stayed by this Court. Learned counsel further submitted that once the Labour Court had
adjudicated the matter on merits, it cannot be concluded that the Tribunal did not go into the question as to whether the Management was initially
justified in not holding the enquiry before passing the order of dismissal. It is submitted that the judgment in Singasan''s case (supra) was rendered
in a writ petition. The Supreme Court was not considering the award made by labour Court. Therein a railway employee had been dismissed from
service without holding a departmental enquiry. A Division Bench, judgment of this court in the case of Swaran Singh v. Punjab State Electricity
Board and Anr. 2000(2) RSJ 578 has been cited by the counsel for the petitioner, during arguments in reply. It is however, submitted by Mr. Sarin
that the aforesaid judgment is not applicable in the facts and circumstances of the present case. In any event in that case, no efforts were made by
the Management to justify the order of dismissal. Mr. Sarin has further submitted that this Court would not be justified in reappreciating the
evidence unless the award suffers from an error apparent on the face of the record. Since the learned senior counsel for the petitioner has not
pressed the points about the dismissal order not relating back to the date of dismissal Mr. Sarin has not addressed any arguments on this point.
11. Learned Senior Counsel has relied on the judgment of the Supreme Court in the case of J.D. Jain Vs. Management of State Bank of India and
another, and submitted that the scope of interference in writ jurisdiction is very narrow. On the basis of this judgment, the learned counsel also
submitted that the evidence appreciated by the Labour Court is not to be scrutinised by the High Court as if the High Court is sitting in appeal over
the findings recorded by the Labour Court.
12. I have anxiously considered the arguments put forward by the learned counsel for the parties.
13. The first submission made by Mr. Mittal was that the Tribunal committed an error of law by not considering whether the Management was
justified for the reasons recorded by the Management, in not holding a domestic enquiry before passing the order of dismissal. In the facts and
circumstances of the case. It would not be possible to agree with the submission made by Mr. Mittal. In my view the interpretation given by Mr.
Mittal of the observations made in paragraph 10 of the award by the Tribunal is not correct. A perusal of paragraph 9 of the award shows that the
number of judgments were cited by the Management before the Tribunal in support of the contention that the Management is entitled to adduce
evidence in support of the dismissal order. It was also argued that in view of Standing Order 31.12 of the Certified Standing Orders of the
Company the right to justify this action had been reserved by the Management while passing- the order of dismissal itself. Considering these
contentions, the Tribunal concluded that disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a
disciplinary action with no enquiry at all. The right of an employer to adduce evidence in both the stipulations is well recognised. Thereafter, in
paragraph 10 of the Award, the Tribunal observes as under:-
10. On a conspectus of the legal position, as discussed above, it is not necessary to dilate upon the justifiability or otherwise of the reasons
recorded by the Management in support of order dispensing with the domestic enquiry. Enquiry has been held by this Court into the charges set
out by the Management in dismissal order, copy of which is placed upon record as Ex. MW-6/15...
14. These observations have been made by the Tribunal in view of he ratio of the law laid down by the Supreme Court in the case of P.H. Kalyani
Vs. Air France Calcutta, . The Supreme Court, inter alia, observed as under:-
''''...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. The
observations in Messrs. Sasa Musa Sugar Company''s case, on which the appellant relies apply only to a case where the employer had neither
dismissed the employee nor had come to the conclusion that a cases for dismissal had been made out. In that case the dismissal of the employee
takes effect from the date of the award and so until then the relation of employer and employee continues in law and in fact. 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.
15. From a perusal of the above, it becomes apparent that the ratio of law laid down in Sasa Musa Sugar Company''s Case, supra would apply
only to a case when the employer had neither dismissed the employee nor had come to the conclusion that a case for dismissal had been made out.
In that case, the dismissal had been made out. In that case, the dismissal of the employee takes effect from the date of the award and so until then,
the relation of employer and employee continues in law and in fact. In the present case, the employer has given cogent reasons for reaching the
conclusions that the workman deserves to be dismissed with immediate effect. Thus the Tribunal held that in view of the law laid down by the
Supreme Court, it is not necessary to dilate upon reasons given by Management, as the employer has led evidence to justify the action before the
Tribunal.
16. The observations made in paragraph 10 of the award also have to be read in the context of the findings arrived, at in paragraphs 25 and 26 of
the award. The Management had reserved its right in the order of dismissal itself (Annexure P-8) to justify its action before the competent authority
in case the order of dismissal is challenged. The relevant portion of the order of dismissal has already been reproduced in earlier part of this
judgment. This right is vested in the Management by virtue of Standing Order 3l.12.also, which is as under:-
31.12. In special circumstances like Labour trouble etc. when it is found that ills not feasible to hold a Domestic enquiry, the Management will
have the right to justify the termination/dismissal before Labour Court.
17. It has been held by the Supreme Court in the case of Bharat Petroleum, supra that once the Standing Orders are certified, they constitute the
condition of service binding upon the Management and the Employees who are already in employment or may be employed after certification.
Relying on Standing Order 31.12, in view of the dangerous circumstances created by the petitioner and other workmen, the Management passed a
composite order, of dismissal as well as dispensing with the domestic enquiry. The findings on justifiability of the action of the Management are
given in paragraphs 25 and 26 of the Award. The Tribunal, in my opinion, had rightly come to the conclusion that the evidence on record has fully
substantiated the acts of misconduct as are described in Clauses of Order 29.1 of the Certified Standing Orders. These are major misconducts for
which punishment of dismissal from service is justified. The Tribunal thereafter, rightly relied on the judgment of the Allahabad High Court given in
the case of Trivani Structural v. State of U.P. 1997 LLR 672 (ALL) wherein it has been held that punishment of dismissal from service can be
awarded even for a solitary act of major misconduct. In the present case, the petitioner had been held guilty of several acts of misconduct. The
Tribunal, thereafter, rightly held that the punishment of dismissal from services cannot be held to be excessive or disproportionate to the
misconduct. Thereafter, in paragraph 26 of the Award, the Tribunal specifically notices the argument of the counsel for the petitioner that even if
order of dismissal is upheld, the petitioner is entitled to wages upto the date of award. This argument can only succeed, if the Tribunal had come to
the conclusion that the Management was not justified in passing the order of dismissal without holding a domestic enquiry. The case of Sasa Musa
Sugar Works (P) Ltd. Vs. Shobrati Khan and Others, was cited in support of the submission made by the learned counsel for the petitioner. On
the other hand, it was contended by the counsel for the Management that if action of the Management is held valid and justified, then the dismissal
would relate back to the date of actual issuance of dismissal letter. Apart from the ratio of law laid down in Kalyani''s case (supra), Learned
counsel also relied on the case of Punjab Dairy Development Corporation v. Kala (supra), in support of the submission. In this case, it is clearly
held as follows:-
2. In view of the aforesaid decisions and in view of the findings recorded by the Labour Court, we are of the considered opinion that the view
expressed in Desh Raj Gupta''s case is not correct. It is accordingly over-ruled. Following the judgment of the Constitution Bench, we hold that on
the Labour Court''s recording a finding that the domestic enquiry was defective and giving opportunity to adduce the evidence by the Management
and the workman and recording of the finding that the dismissal by the management was valid, it would relate back to the date of the original
dismissal and not from the date of the judgment of the Labour Court.
18. After noticing the aforesaid judgments, the Tribunal, in my opinion, has rightly come to the conclusion that the relationship of employee and
employer had existed between the parties upto 8.8.1989. Therefore, the petitioner was not entitled to wages upto the date of the award. In
paragraph 28 of the award, the Tribunal observed as under:-
28. No enquiry was conducted in this case by the management and the petitioner was not heard before his dismissal from service. The petitioner
considered, bonafide in his estimation, that he had been wrongly punished and, therefore, he fought this long drawn legal battle with his employer.
Although the order of dismissal is valid and justified, yet in the peculiar circumstances of this case, I feel that the petitioner should be awarded some
compensation. Therefore, I allow Rs. 50,000/- as compensation to the petitioner to be paid by the management.
19. Implicit in this finding would be the finding of the Tribunal that the Management was justified in not holding domestic enquiry before passing the
order of dismissal. In view of the above, it would not be possible to hold that the Tribunal had failed to go into the justifiability of the reasons for
dispensing with the enquiry before passing the order of dismissal. Mr. Mittal has, however, placed strong reliance on the observations made by the
Supreme Court in the Case of Singasan Rabi Das, supra. In that case, the Supreme Court was considering the case of a railway servant who had
been removed from service without holding a domestic enquiry by invoking the powers of the Management to do so under Rule 47 of the Railway
Protection Force Rules 1959. The matter did not reach the High Court or the Supreme Court by way of a reference under the rules of Industrial
Disputes Act and a consequential award by the Labour Court or the Industrial Tribunal. Infact, Singasan (the dismissed employee) filed a writ
petition challenging the order of dismissal. The order was challenged before the Division Bench on the ground that the same was passed without
any enquiry into the charges and without giving any opportunity to the respondents to show cause against the proposed punishment. The order was
said to be contrary to the law laid down by the Supreme Court in the case of The Divisional Personnel Officer, Southern Railway and Another Vs.
T.R. Chellappan and Others, . It was held that the reasons given by the Management for dispensing with the enquiry were sufficient. The High
Court was, however, of the view that Singasan Rabi Das was entitled to a show cause notice against the proposed punishment. Since an
opportunity to show cause had not been given, the order of removal was bad. The High Court quashed the order of removal and gave opportunity
to the disciplinary authority to pass fresh order, after giving opportunity to Singasan to show cause against the proposed punishment. The matter
was taken to the Supreme Court by the Railway Authorities. It was contended before the Supreme Court that in view of the judgment in the case
of Union of India and Another Vs. Tulsiram Patel and Others, , it was not necessary to give a second show-cause notice. In these circumstances,
the Supreme Court observed that it was not necessary to go into the submission made by Dr. Anand Prakash, counsel for the appellant therein
because it was of the opinion that the reasons given for dispensing with the enquiry is totally irrelevant and totally insufficient in law. Thus, it
becomes evident that the High Court as well as the Supreme Court were not dealing with the case where the workman had initially challenged the
order of dismissal by way of Reference under the Industrial Disputes Act, 1947, with a consequential award by the Industrial Tribunal or the
Labour Court. When the matter comes up before the Tribunal in a reference under the Industrial Disputes Act on the ground that no enquiry has
been held or that a defective enquiry has been held, the Tribunal/the Labour Court, on an application made to that effect, is duty bound to afford
an opportunity to the Management to justify its action. Such was not the position in Singasan''s case (supra). Therefore, the High Court as well as
the Supreme Court examined the reasons given by the Management for dispensing with the enquiry. In the present case, the Management had
reserved its right to justify the action in the order of dismissal itself. Before the Tribunal both the parties had led evidence. The Tribunal has come to
the conclusion that the action of the Management in dismissing the petitioner is justified. Therefore, the judgment in Singasan''s case would be of no
assistance to the petitioner. Mr. Mirtal has also strongly relied on the Division Bench Judgment of this Court in the case of Swaran Singh, Supra.
The Division bench was considering a case where the workman had been dismissed from service without holding an enquiry. The allegation against
the workman was that he had remained absent from duty for a period of two years. Without holding an enquiry by exercising its powers under
Regulation 14 read with Regulation 5 (iii) of the Punjab State Electricity Board Employee (Punishment and Appeal) Regulations, 1970 (for short,
the Regulation), the petitioner therein was dismissed. The wordings of regulation 14(ii) are as under:-
14. Notwithstanding anything contained in Regulations 8, 9, 10, 11, 12 and 13:-
(i).......
(ii) Where the punishing authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the
manner provided in these regulations; or
(iii) xxx xxxx xxxx the punishing authority may consider the circumstances of the case and make such orders thereon it deems fit.
20. The workman, Swaran Singh challenged the action of the Punjab State Electricity Board by raising an industrial dispute which the Government
of Punjab referred to Labour Court, Ludhiana u/s 19(1)(c) of the Industrial Disputes Act, 1947. The plea taken by the petitioner therein was that
action of the employer was liable to be nullified because neither any notice was given to him in terms of Section 25(F) the Industrial Disputes Act
nor any enquiry was held to prove the allegation of mis-conduct, namely, absence from duty. Punjab State Electricity Board, the employer, resisted
the claim of the workman by contending that he had abandoned the service on 4.2.1984. It was also pleaded or behalf of the employer that the
services of the workman had been terminated under Regulation 14 (ii) of the Regulations because he failed to report for duty inspite of the notices
issued by the concerned authority. The Labour Court held that the action taken by the employer was outside the purview of Regulation 14 (ii)
because there did not exist any reasonable ground for dispensing with the enquiry. Thus, the Labour Court declared the termination as illegal and
reinstated the workman into service with continuity of service. He was, however, denied wages for the period from the date of termination of
service i.e. 4.2.1984 to the date of demand notice i.e. 26.4.1986. P.S.E.B., the employer challenged the award by way of a writ petition in this
Court. The learned Single Judge quashed the award passed by the Labour Court holding that the charge on which the workman was retrenched
from service was proved to the hilt and he cannot complain of violation of the principles of natural justice. The workman, therefore, filed Letters
Patent Appeal against the judgment of the learned Single Judge. The Division Bench set aside the Judgment of the learned single Judge and the
award of the Labour Court was restored. Whilst examining the reasons of the Board for dispensing with the enquiry, it was observed that no
attempt was made on behalf of the Management to justify the termination of the services of the appellant by stating that he was punished on the
basis of finding recorded in the departmental enquiry held according to the Regulations and the principles of natural justice. It was not even urged
on behalf of respondent No. 1 (PSEB) that the Labour Court may itself hold an enquiry and give an opportunity to the parties to adduce evidence.
Therefore, the Division Bench held that the learned Single Judge was not justified in holding that the charge on which the workman was retrenched
was proved to the hilt or that his conduct was deplorable or blame-worthy. From the above, it becomes apparent that the Division Bench was
considering a case where no departmental enquiry had been held and the Management had made no effort to justify its action before the Labour
Court. There learned single Judge had set aside the award by merely relying on the pleadings of the parties in the Labour Court. In such
circumstances, the Division Bench held that there was no material before the learned Single Judge to hold that the mis-conduct has been proved.
That is not the position in the present case. Both the sides had led evidence. Lengthy arguments had been addressed before the Tribunal. On the
basis of the evidence adduced by the parties before the Tribunal, certain findings of fact have been recorded. As noticed earlier, the Management
had reserved its right to justify its action in the order of dismissal. The standing order 31.12 also permitted the Management to adopt such a
course. Therefore, it cannot be said that the Tribunal has not examined the reasons given by the Management for dispensing with the enquiry. The
Supreme Court in the latest judgment rendered in the case of Karnataka State Road Transport Corporation v. Lakshmidevamma and Anr., 2001
AIR Supreme Court Weekly, 1981 examined the law with regard to the giving of an opportunity to the employer to adduce evidence to justify its
action, in the event, the Tribunal or the Labour Court comes to the conclusion that the enquiry was either not held or the enquiry held was
defective. It was held that the right of the employer to adduce evidence is not a statutory right. This is actually a procedure laid down by the
Supreme Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the Management and the workman. This
procedure is said to be beneficial for both the management and the workman alike. The Supreme Court traced the genesis and the history of this
rule of practice. The law on this point was laid down in the case of Cooper Engineering Limited v. P.P. Mundhe, AIR 3975 SC 1900. The
Supreme Court held as under:-
13. The above judgment in D.C.M.''s case came to be considered again by this Court in the case of The Cooper Engineering Limited Vs. Shri
P.P. Mundhe, (, wherein this Court held (para 22):
We are, therefore, clearly of the opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the
Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no
domestic enquiry or defective enquiry is admitted by the employer; there will be no difficulty. But when the matter is in controversy between the
parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it
will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding
to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the
Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award.
It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no
undue delay in industrial adjudication.
21. From the above, it becomes evident that the Tribunal acted strictly in conformity with the law laid down by the Supreme Court. Since the order
of dismissal was passed without holding an enquiry, the Management justified its action before the Tribunal. On an application being made at the
appropriate time, the Tribunal was duty bound to independently examine the action of the Management in dismissing the workman. The Supreme
Court in fact sounded a note of warning and made it clear that there will be no justification for any party to stall the final adjudication of the disputes
by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final
award. It will be also legitimate for the High Court to refuse to intervene at this stage. Thus it becomes apparent that the Tribunal was duty bound
to consider the case on merits.
22. Mr. Mittal had argued that the Management could have achieved the purpose of removing the petitioner from the scene by suspending him
during the pendency of the enquiry. This power is given to the Management under Standing Order 31.3 which provides that the workman may be
placed under suspension pending his explanation or subsequent departmental enquiry till the final orders are passed. This not having been done, it
necessarily leads to the conclusion that the Management was not justified in passing the order of dismissal without holding a departmental enquiry. I
do not find much force in the submission made by the learned senior counsel. A perusal of the award passed by the Tribunal shows that this point
was not even raised before the Tribunal. Even otherwise, the findings of the Tribunal leave no manner of doubt that the petitioner and his colleagues
had created an atmosphere which would justify the Management removing them from service with immediate effect.
23. Mr. Mittal has, thereafter, argued that the findings returned by the Labour Court are perverse as relevant evidence has been ignored. Mr.
Mittal sought to challenge the findings recorded by the Tribunal on the ground that the evidence of the expert witness-WW1 has been totally
ignored. Factually, this assertion of the learned senior counsel is incorrect. A perusal of the award shows that the Tribunal after appreciating the
evidence has differed with the findings recorded by the expert witness. The Tribunal has given elaborate reasons for not relying on the evidence of
the expert witness. Once the Tribunal has appreciated the evidence of the witness, it would not be possible for this Court to re-examine the same
whilst exercising its jurisdiction under Articles 226/227 of the Constitution of India. The scope and ambit of the jurisdiction of the High Court under
Articles 226/227 of the Constitution was explained by the Division Bench in the case of Swaran Singh, supra. In paragraph 7 of the judgment, the
Division Bench held as un-der:-
7. We have thoughtfully considered the respective submissions. It is trite to say that a writ of certiorari can be issued for correcting errors of
jurisdiction committed by inferior Courts or Tribunals or an error of law apparent on the face of the record. A writ can also be issued where in
exercise of jurisdiction conferred upon it, the Court or Tribunal acts illegally or improperly, i.e. if it decides a question without giving an opportunity
of hearing to the affected party or where the procedure adopted in dealing with the dispute is contrary to the principles of natural justice. However,
it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is
not entitled to act as an Appellate Court. This implies that the finding of fact reached by the inferior Court or Tribunal as a result of appreciation of
evidence cannot be reopened or questioned except when it sufferers from an error of law apparent on the face of it. What is the meaning of
expression ""error of law apparent on the face of the record?"" The Courts have not given any fixed meaning to this expression in the context of the
findings of fact recorded by the inferior Court or tribunal but, broadly speaking, a writ of certiorari can be issued for correcting a finding of fact if it
is shown that in recording the said finding the Court or the Tribunal had erroneously refused to admit admissible and material evidence or had
erroneously admitted inadmissible evidence which has influenced its finding. Similarly, if a finding of fact is based on no evidence then it would be
regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, it has to be kept in mind that a
finding of fact recorded by the inferior Court or Tribunal cannot be challenged on the ground that relevant and material evidence adduced before
the inferior Court or Tribunal was insufficient or inadequate to sustain the impugned finding. Likewise, mere possibility of the High Court, on
reappreciation of evidence, coming to a different conclusion than the one reached by the inferior Court or Tribunal cannot be treated as an error of
law apparent on the face of the record.
24. From the above it becomes quite clear that this Court whilst exercising its jurisdiction under Article 226 ought not to sit over the finding of facts
as an Appellate Court. This position has been reiterated by the Supreme Court and various High Courts time and again and does not need to be
repeated here. This judgment relied upon by the petitioner is of no assistance for the case put forward by the petitioner. It rather helps the
submission made by the learned Counsel for the respondents.
25. The charges which have been proved against the petitioner are of a very serious nature. Even criminal case is pending against the petitioner for
having assaulted the superior officers. All the charges levelled against the petitioner have been found to be factually proved by the Tribunal. In such
circumstances, it would not be possible to hold that the award suffers from an error of law apparent on the face of the record. Mr. Mittal was at
pains to invite this Court to re-examine the whole evidence. I am of the considered opinion that this Court would be remiss, if such a course is
adopted. However, in order to satisfy the anxiety of the counsel for the petitioner, I have gone through the record with the assistance of the learned
counsel.
Charge No. 1 states that the petitioner alongwith Trilok Raj and Zile Singh had broken the lock of reduction Gear Box with hammer. They had
also abused Mr. James who had tried to stop them from breaking the lock. The petitioner had shouted something in vemaculan-
.
HUM TEENO TERE BAAP MILKAR AAJ TERI MAAN CHOD DENGE"".
The petitioner had also tried to hit Mr. James with hammer but hand of the petitioner was held by Mr. James Mr. James could have sustained
grievous injury had he not blocked the hammer blow.
Charge No. II states that on 17.7.1989, the petitioner and his two co-workers namely. Trilok Raj and Zile Singh had confronted Senior Division
Manager (Maintenance) K.S. Bhambra, who has on his usual round, saying:-
SIKHDE BAHANCHOD TERE BHEJE MAIN BAAT GUSTI HAI KI NAHI TOO HAMMARE BANDO KO JALDI CHOOD DIYA
KAR TERI ASANSIAL SARVIS SAALI GAEE BHAD MAI"".
The petitioner and his co-workers had got furious and had grabbed K.S. Bhambra, flung his turban, had caught him by the hair and has given
beating to him. The petitioner etc. had extended threat of dire consequences to K.S. Bhambra, in case the matter was reported by him to the
higher management.
Charge No. HI states that on 19.6.1989, the petitioner was caught tampering with the number punching machine rendering it useless for work and
thereby stopping the conveyor line for 25 minutes. When Mr. James, Head of the Department had objected to the above act, the petitioner had
abused Mr. James and had said:-
GAAND MARWA LE MAINE JO KARNA THA KAR DIYA TUJHSE JO HOTA HAI KAR LE"".
Mr. James had warned the petitioner of strict action but the petitioner had left the department exhibiting impertinence.
Charge No. IV states that on 19.7.1989, the petitioner had held a gate meeting at the main factory gate, which was addressed by him (petitioner)
and by some other persons. The petitioner had delivered inflammatory speech, preaching violence and use of force against the management
executives and such workmen who were willing to work. The petitioner, together with his colleagues, had man-handled staff members mentioned in
the charge-sheet. The petitioner and his co-workers had instigated other workers to resort to strike, as a result of which most of the workmen had
not reported for duty w.e.f. 24.7.1989 and are still absenting themselves when the petitioner was dismissed from service on 8.8.1989, The
production of the management was reduced and financial loss to the tune of Rs. 50 lacs per day had been caused. The petitioner had also forcibly
stopped the other willing workers by threatening them with dire consequences. . Charge No. V states that the petitioner and his other colleagues
had willfully violated settlement dated 22.8.1987 u/s 12(3) of the Act, 1947, by absenting from work, indulging in indiscipline, stoppage and
disruption of work, resorting to violence and inciting other workmen to violate the said binding settlement.
26. Ail these charges have been proved before the Tribunal by oral as well as documentary evidence. Mr. Mittal, however, submits that all these
findings are of BO avail to the management as the Tribunal has wrongly differed with the findings returned by the expert to the effect that the
signatures of Mr. James on the two complaints dated 15.7.1987 and 19.7.87 are forged. As noticed earlier, this Court will not reappreciate the
evidence to come to a conclusion different from the one arrived at by the Tribunal on the basis of the evidence. Even otherwise, it is on the record
that complaints signed by K.R. Thomas, are also signed by K.D. Sharma. He has appeared as MW3. He has given eye-witness account of the
entire episode. In any event, mere is independent evidence in the form of a complaint made by Mr. K.S. Bhambra. This relates to a totally
independent incident. He has also appeared as MW1 and narrated the entire episode. The evidence of these witnesses has been appreciated by
the Tribunal. Only, thereafter findings of fact have been recorded. A finding of fact can only be termed as an error of law hen it is based on no
evidence. But this is not a case of no evidence. If that be so, then the findings cannot be challenged on the ground that relevant and material
evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned findings.
27. Mr. Sarin has submitted that the removal of the petitioner and 14 other workmen from service was infact accepted by the Union in a settlement
arrived at between the management and the workers Union on 11.9.1989. The settlement had been challenged by way of a writ petition. The same
has been upheld. Therefore, the dismissal of these workmen cannot be challenged in this writ petition. A perusal of paragraph 18 of the Award
shows that the Tribunal has held the settlement to be binding in view of the law laid down by the Supreme Court in the case of P. Virudhachalam v.
The Managemnet of Lotus Mills 1998 (78) FLR 107. In my view Mr. Sarin is correct in the submission made by him that the petitioner had
accepted the legality of the order of dismissal by virtue of clause 6. It is however, not necessary to nonsuite the petitioner on this point, as the
Tribunal has given independent findings of fact, holding the action of the Management to be justified. As noticed earlier, the findings having been
arrived at on the basis of evidence, this Court would not be justified in interfering with the same whilst exercising the jurisdiction under Article 226.
The learned Sr. Counsel has rightly relied on the judgment of the Supreme Court in the case of Indian Overseas Bank Vs. I.O.B. Staff Canteen
Workers'' Union and Another, . In that case, the Supreme Court has reiterated the welt-settled law on the parameters within which the High Court
can interfere in findings of fact rendered by the Tribunals/Labour Courts. The relevant observations made in paragraph 17 are as under:-
17. The Learned Single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by literally
reappreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising
any appellate jurisdiction over the awards passed by a Tribunal, presided over by a Judicial Officer. The findings of fact recorded by fact-finding
authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason
of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings, at any rate, as
long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can
reasonably and possibly be taken.....
28. Keeping the aforesaid observations in view, I am of the considered opinion that the present award cannot be termed as suffering from error of
law apparent on the face of the record. Mr. Sarin also reiterated that even if the complaint made by Mr. James is ignored, the findings of facts
recorded by the Tribunal can be justified as the complaint need not even be in writing. For this proposition, the learned Sr. counsel has relied on
the judgment of the Supreme Court in the case of J.D. Jain Vs. Management of State Bank of India and another, . In that case, the Supreme Court
again reiterated that in an application for writ of certiorari under Article 226 of the Constitution for quashing the award of Industrial Tribunal, the
jurisdiction of the High Court is limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of
the record or when the findings of facts of the Tribunal is perverse. In paragraph 11 of the judgment it is clearly noticed that no rule of law enjoins
that a complaint has to be in writing as insisted by the Tribunal. In the present case, even if one ignores the complaint made by Mr. James, there is
independent, oral and documentary evidence to justify the findings recorded by the Tribunal. Mr. Mittal has also argued that there was hostile
discrimination as large number of workers who had participated in the strike had been permitted to continue. Mr. Sarin has, however, pointed out
that the petitioner is admittedly not an officer of the Union. The Tribunal has come to a conclusion that the petitioner has failed to make out a case
of victimisation. This conclusion has been supported by the evidence of one of the witnesses-WW2 Bijender Pal. A perusal of paragraph 19 of the
award clearly shows that the petitioner admitted that he has never been ""an office bearer of the Union. His own witness WW2 Bijender Pal stated
before the Tribunal that alothough he is an active member of the Trade Union, he was not removed from service by the Management because of
his Trade Union activities. It is only thereafter, the Tribunal came to the conclusion that workers participating in the Trade Union activities were not
being victimised by the Management. Thus the question of his victimisation on account of union activities does not arise. He has been dismissed on
account of proven acts of mis-conduct. Earlier having given up as not pressed the argument that the petitioner had been victimised, Mr. Mittal has,
however, reintroduced the same by rechristening it as hostile discrimination. Having earlier abandoned the argument, it would not be proper to
permit the petitioner to reopen the same under a different heading. The tribunal having given categoric findings of fact based on evidence, this Court
would be wholly unjustified in interfering with the same. A perusal of the concluding part of the award shows that even after upholding the action of
the Management and holding that the dismisal order is justified, the Tribunal produceeded to award compensation to the petitioner in the sum of
Rs. 50,000/-. This finding is not challenged before me by the Management. Therefore, the court need not examine the propriety of the same.
29. For the reasons stated above, the writ petition is dismissed. No costs.