Binod Kumar, son of Rajendra Prasad, aged about 54 years resident of Q. No v. 1. The State of Jharkhand 2. The Deputy Labour Commissioner, Government of Jharkhand, P.O
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A No.63 of 2023 Binod Kumar, son of Rajendra Prasad, aged about 54 years resident of Q. No. SF 3/30, Baradwari, Supervisory Flat, P.O. and P.S.-Sakchi, Jamshedpur, District- East Singhbhum. Jharkhand-831001 .… Petitioner/Appellant Versus 1. The State of Jharkhand 2. The Deputy Labour Commissioner, Government of Jharkhand, P.O. and P.S.-Sitaramdera, Jamshedpur, District- East Singhbhum, Jharkhand- 831003. 3. TATA Steel Limited, Jamshedpur, through its Managing Director office at Bistupur, P.O. and P.S.-Bistupur, Jamshedpur, District East Singhbhum, Jharkhand-831001. 4. Managing Director, TATA Steel Limited, office at Bistupur. P.O. and P.S.- Jharkhand- District-East Bistupur, 831001. .....Respondents -------------- Jamshedpur, Singhbhum.
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellant For the State : Mr. A.K. Rashidi, Advocate : Mr. Suresh Kumar, SC (L&C)-II Mr. Rajesh Kumar Singh, AC to SC (L&C)-II For the Resp. Nos.3 & 4 : Mr. G.M. Mishra, Advocate --------------- 23rd November 2023 Aggrieved by the order dated 7th December 2022 by which W.P(L) No.1866 of 2020 has been dismissed, the workman has filed the present Letters Patent Appeal. 2. Briefly stated, the workman who was employed under M/s Tata Steel Limited as Junior Supervisor Trainee on 23rd March 1992 faced a departmental inquiry for committing misconduct under charge-memo dated 14th July 2015 with supplementary charge-memo dated 24th July 2015. The dispute raised by the workman was referred for adjudication and the reference was registered as I.D Case No.18 of 2016. The workman filed Misc. Case No.8 of 2017 for payment of subsistence allowance during the pendency of I.D Case No.18 of 2016 and the Labour Court by an order dated 3rd March 2020 held that the departmental inquiry conducted against the workman was not fair and proper. The Labour Court however dismissed Misc. Case No.8 of 2017 holding as under: “11. In view of the Bombay High Court Judgment above referred wherein 2 L.P.A No.63 of 2023 after discussion and giving very cogent reasons, such subsistence allowance pending denovo enquiry before the Court is held to be inadmissible. It is held that: (i) The proceeding before the court cannot be equated with departmental/domestic enquiry by the Employer. (ii) Even if, the court having found the domestic Enquiry unfair and deferred a fresh/denovo enquiry in course of the proceeding to be held by itself, the dismissal order is neither set aside nor it is held in abeyance. (iii) In Engineering Laghu Udyog Employment Association vs. The Judge, Labour Court” AIR 2004 SC 4951 the Apex court has held that only in case a satisfaction is recorded by the Tribunal/Court that the order of the discharge/dismissed was not justified, same can be set aside. So long, as the same is not set aside it remains valid. Once the charges are proved before the Labour court as well, the order of termination would relate back to the date of original order. Under such situation it would be next to impossible to realize the already paid amount from the workman whereas after successful dispute finding in his favour the court can always direct the O.P. to pay his entire back wages etc. (iv) Even in case the employer terminates the workman without any enquiry the Employer is always given a chance to bring evidence & prove its case, if any, and in no case the workman is reinstated straight way. During that proceeding also no allowance is paid to the workman. (v) The court cannot be equated with an Employer as it is performing a judicial function of giving an opportunity to the petitioner to adduce evidence to prove charges of misconduct before it, and that is because law postulates such opportunity. The law does not equate this situation with suspension by the employer pending domestic enquiry with the complaints. 12. In view of the legal provisions above discussed, this court does not find any merit in the petition which stands dismissed.” 3. Aggrieved thereby, the workman approached the writ Court in W.P(L) No.1866 of 2020 which has been dismissed primarily referring to Writ Petition No.2606 of 2010 titled “M/s Mumbai Cricket Association v. Pramod G. Shinde” wherein a Division Bench of the Hon’ble Bombay High Court held as under: “26. Mr. Pathak submits that if the orders of the present nature are set aside, then, employers may delay the enquiry or prolong or protract it endlessly. In such a situation, a employee who is already dismissed from services will be seriously prejudiced as grave hardship and irreparable loss will be caused to him. Therefore, the Court should extend the principle laid down in the Supreme Court's decisions referred to above and read into the same an implied power of the Labour Court to grant such a relief. In this behalf he has relied upon the decision of the Division Bench of this Court in the case of Air India Limited (supra). Far from assisting Mr. Pathak, this decision is re-enforcing the conclusion arrived at by me. The question which arose for determination of the Division Bench is whether dismissed employee against whom an application is filed by the employer under section 33(2)(b) of Industrial Disputes Act, 1947 seeking approval to the imposition of the penalty from dismissal of services, is entitled to subsistence allowance pending the final disposal of the application. The Division Bench had before it a case arising out of an application for approval made by the employer post termination of the services of the employee. The Division Bench was considering the ambit and scope of 3 L.P.A No.63 of 2023 section 33(2)(b) which appears in Chapter VII of the Industrial Disputes Act, 1947. After referring to the object of the said provision in para 5, the Division Bench noted distinction between section 33(1) and section 33(2). The Division Bench was dealing with the ambit and scope of section 33(2)(b) and after referring to the Supreme Court decisions in the field, it concluded that there is a distinction between section 33(1) and section 33(2) and section 33(3). In the former cases previous permission of the authority concerned has to be obtained before any action is taken against the workman whereas under section 33(2)(b) only approval to an action already taken is required to be sought. It is in that context it referred to the case of Fakirbhai Fulabhai Solanki (supra) and made the observations made in paragraphs 16 and 17 which are relied upon by Mr.Pathak. But what Mr. Pathak failed to note is the conclusion in paragraph 20 of the decision in the case of Air India Ltd (supra) which reads thus: "20. Broadly the cases in the Tribunal could be categorised in three categories. As far as the first category of cases is concerned, they are cases in which a workman is dismissed for misconduct after due inquiry and on scrutiny by the Labour Court or the Tribunal, as the case may be, also the inquiry is found to be valid. In such cases, there would be no justification for providing payment of subsistence allowance to the workmen concerned. The mandate of the statute is to WP2606- 10 complete the proceedings within a period of three months. If in every case application for interim order is filed and on that application considerable amount of time is spent both before the Tribunal and Labour Court and before the High Court, the legislative mandate of early hearing of the application would be completely defeated. In such cases, the Tribunal would be justified in taking up the main application for approval for hearing. But there are cases in which either the domestic inquiry held by the management is set aside on the ground that it was defective or there was only a facade of an inquiry or there was no inquiry at all. But for the procedure evolved by the decisions of the Court in the interest of speedy finalisation of the cases in which the workmen were dismissed from service, by requiring the Labour Court or the Tribunal itself to hold a de novo inquiry, the position would have been, the moment it is established that the domestic inquiry is invalid or there was no domestic inquiry at all, the penalty imposed would have had to be set aside, but without prejudice to the right of the management to hold a de novo inquiry. In that situation, during the period of de novo inquiry, the management may be asked to give subsistence allowance to the workmen concerned in accordance with the Standing Orders or the rules regulating the condition of service. It is because of the procedure, namely, the holding of domestic inquiry by the Labour Court/Tribunal itself, evolved by the decision of the Court, it has resulted in this situation viz., even as the order of dismissal remains undisturbed, a de novo inquiry is held to find out as to whether dismissal was justified or not. We are of the opinion that if de novo inquiry is ordered to justify the order of dismissal and the matter has been unduly protracted for no fault of the workmen, the Tribunal would be justified in awarding subsistence allowance to the workman in appropriate cases. We, however, hasten to add that the grant of interim relief is not a matter of course and the exercise of such power should be used sparingly and only in deserving cases." 28. In the light of the observations of the Hon'ble Supreme Court in three Judges Bench decision referred by me above and particularly the observations in paragraph 15, it is clear that the Labour Court has ample powers, if it finds that the employee is dragged into endless or futile litigation. If the employer is unable to prove the charges of misconduct even if of serious nature, by adducing additional evidence before the Court, then, in conclusive and final order the Labour Court while granting appropriate relief to the workman it may also direct payment of backwages 4 L.P.A No.63 of 2023 and take care of the victimisation of the employee by the employer as held by the Hon'ble Supreme Court. 29. Therefore, it is not as if the hardship to the employee has not been taken note of by the Hon'ble Supreme Court or has gone completely unnoticed till date.” 4. The writ Court recorded its concurrence with “M/s Mumbai Cricket Association” and held that no subsistence allowance is payable to the workman in a proceeding before the Labour Court/Tribunal. The writ Court has held as under: “Thus, the issue has been settled by the Hon’ble Bombay High Court relying upon the judgment of the Hon’ble Apex Court to the effect that no subsistence allowance is payable in a proceeding pending before a Labour Court or Tribunal under Section 10 of the I.D. Act. So far as the judgment relied upon by the learned counsel for the petitioner is concerned that was with regard to the payment of subsistence allowance under Section 10A of the I.D. Act. The Hon’ble Apex Court has opined in the above judgment that merely a wrong section has been quoted that will not vitiate the proceeding. If the Labour Court has a jurisdiction to entertain an application under Section 10 A of the I.D. Act then merely the fact that it has been filed under Section 33 (C) (2) of the I.D. Act will not vitiate the proceeding. In that case the claim has been raised, the claim was with regard to the subsistence allowance pending departmental enquiry before the employer. While in the present case, the claim is for subsistence allowance which is pending enquiry before the Labour Court. Thus, in view of above discussion, it is clear that employee is entitled for subsistence allowance only in the case if the proceeding is pending before the employer and not for the proceeding pending before the Labour Court or Tribunal under Section 10 of the I.D. Act. Since, in the present proceeding Section 10 of the I.D. Act is under consideration and accordingly this Court is not discussing the other section of the I.D. Act. In view of above observation and reasons given, this Court finds no merit in the present writ petition accordingly the same is hereby dismissed. However, the concerned Labour Court is directed to concluded the proceeding as early as possible preferably within four months from the date of receipt/production of a copy of this order.” 5. Mr. A.K. Rashidi, the learned counsel for the appellant submits that now an Award dated 23rd June 2023 has been prepared which has been challenged by the workman in the proceedings of W.P(L) No.5073 of 2023. 6. While so, L.P.A No.63 of 2023 has been rendered infructuous and is dismissed, as such. (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) sudhir/N.A.F.R.