The Food Corporation of India, through Smt. В. Subhalaxmi, aged about 58 years, daughter v. 1. Satya Narayan Singh, son of Late Ram Chandra Singh, resident of Flat No
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(L) No. 1169 of 2018 The Food Corporation of India, through Smt. В. Subhalaxmi, aged about 58 years, daughter of Jaganmohan Bommakanti, Executive Director (East), at Food Corporation of India, Zonal Office (East), 10A, Middleton Row, P.S. Park Street, P.O., P.S & District Kolkata. Petitioner … … Versus 1. Satya Narayan Singh, son of Late Ram Chandra Singh, resident of Flat No. D/1, Usha Kunj, Near State Bank of India, Chiragora, P.S. Hirapur, P.O. & District Dhanbad. 2. Jiten Chandra Modak, son of Late Sudhir Chandra Modak, resident of Flat No. D/1, Usha Kunj, Near State Bank of India, Chiragora, P.S. Hirapur, P.O. & District Dhanbad … … Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Respondents
Legal Reasoning
for the petitioner submits that this Court has held that on bare reading of the provisions of section 33 and 33-A of the Act of 1947, it clearly indicates that the alleged misconduct ought to be linked with the pending dispute and if the final outcome has any bearing with respect to the pay-scale, the same by itself cannot be said to be linked with the dispute regarding ‘overtime allowance’. It has been held that the provision of law does not contemplate any prior or post approval in unconnected dispute if the punishment is not of dismissal. It has been submitted that in view of aforesaid the finding of the learned Tribunal that compliance of section 33 of the Act of 1947 by the petitioner management was mandatory merely because the complainant was workman and was concerned with Reference Case No. 138 of 1997 and that by reducing his pay and post, his entitlement of overtime allowance is also reduced, was held to be not sustainable in law. This Court also held that the pending dispute regarding ‘overtime allowance’ had no connection with the dispute regarding fake procurement of foodgrains. 8. The learned counsel for the petitioner has submitted that in the present case also, the enquiry proceeding was in connection with shortage of food grains and therefore, the enquiry was rightly conducted without taking any prior permission of the learned Tribunal and punishment has been imposed and merely because punishment has a bearing on the wages, the same does not mean that the case was linked with the pending Reference Case No. 138 of 1997. He submits that the case of Jiten Chandra Modak is squarely covered by the judgment passed by this Court in W.P.(L) No. 2703 of 2018 decided on 01.07.2024. 9. With respect to the other respondent namely Satya Narayan Singh, the learned counsel for the petitioner submits that his designation has been wrongly mentioned in the award which is
Arguments
--- : Mr. Shubham Sinha, AC to Mr. Nipun Bakshi, Advocate : Mr. Manoj Kumar Sinha, Advocate --- 13/24.10.2024 Learned counsel for the parties are present. 2. This writ petition has been filed for the following reliefs: "(i) For issuance of a writ of a certiorari or any other appropriate writ/order/ direction for quashing and/or setting aside the award dated 26.09.2016 (at Annx-6) (Published in the Gazette on 21.10.2016), passed by Shri Ranjan Kumar Saran, the learned Presiding officer, Central Government Industrial Tribunal No.1, Dhanbad, in Complaint Case No. 7/2015 under Section 33A of the Industrial Disputes Act, holding, inter alia, that the enquiry report against the respondents is perverse and consequently punishment order is set aside with a further direction that the pay of the respondents be restored from the date of punishment. (ii) For issuance of any other appropriate writ/order/direction for grant of such other reliefs as may be incidental or consequential to or connected with setting aside the aforesaid impugned award and for doing conscionable justice to the petitioner." 3. Learned counsel for the petitioner has submitted that the impugned order passed by the learned Central Government Industrial Tribunal (No. 1), Dhanbad (hereinafter referred to as the Tribunal), 1 has been passed in connection with Complaint Case No. 4 of 2015 and also Complaint Case No. 7 of 2015. So far as the present case is concerned, it is arising out of Complaint Case No. 7 of 2015 in which two persons are involved namely Satya Narayan Singh and Jiten Chandra Modak. 4. While referring to the case of Jiten Chandra Modak, the learned counsel for the petitioner submits that a petition under section 33-A of Industrial Disputes Act, 1947 (hereinafter referred to as the Act of 1947) was filed alleging violation of section 33 of the Act of 1947 by stating that a Reference Case No. 138 of 1997 was pending and during the pendency of the said case, the management changed the service conditions; common charge-sheet was issued against the complainants and without taking prior permission, the punishment dated 31.12.2014 was imposed. 5. The learned counsel has submitted that the Reference Case No. 138 of 1997 was in relation to all the employees and the dispute was with regard to their entitlement of overtime allowance. He has submitted that at the relevant point of time, Jiten Chandra Modak was working in the post of AG-II(D). 6. Learned counsel for the petitioner has further submitted that the maintainability of the case was specifically taken up and was decided vide paragraph 14 of the impugned award and it was held that since overtime allowance (OTA) to workman is linked with basic pay of the employees and as per the order of punishment, the pay was reduced to initial pay [10 and 8 stages below], the entitlement of the complainants to get OTA would get badly affected and as such the same amounted to alteration in service conditions and therefore, the provision of section 33(1) of the Act of 1947 was applicable. 7. The learned counsel has referred to a judgment passed by this Court in W.P.(L) No. 2703 of 2018 decided on 01.07.2024 and has submitted that arising out of the same reference case, a similar issue regarding requirement to seek permission of the management to initiate a proceeding on account of misconduct has been decided. By referring to paragraphs 20 to 23 of the said judgment, learned counsel 2
Decision
apparent from the punishment order annexed with the writ petition and the punishment order reveals that the Satya Narayan Singh was working as AG-I(D). He submits that in the judgment passed by the Hon’ble Division Bench of this Court in LPA No. 446 of 2019 (Food 3 Corporation of India Vs. Kumar Madan Mohan) decided on 04th August 2023, it has been held that the persons working in the aforesaid category were not workmen and therefore, the industrial dispute under Industrial Disputes Act was not maintainable. 10. He submits that the point regarding maintainability of the industrial dispute was raised and decided vide paragraph 14 the impugned judgment and it was observed by the learned Tribunal that in the judgment of Hon'ble Delhi High Court in W.P.(C) No. 2084 of 1998 in the case of "FCI Vs. Govt. of India" it was specifically held that even ‘manager’ is considered as workman under the Act of 1947. 11. The learned counsel for the petitioner submits that the said judgment of Hon'ble Delhi High Court passed in W.P.(C) No. 2084 of 1998 (Supra) was also considered in LPA No. 446 of 2019 wherein it was recorded that the judgment passed in W.P.(C) No. 2084 of 1998 (Supra) was set-aside in LPA No. 697 of 2012 and the matter was remanded back for fresh consideration by the learned Single Judge of Hon'ble Delhi High Court. The learned counsel for the petitioner has referred to paragraph 22 of the judgment in LPA No. 446 of 2019. 12. Learned counsel for the petitioner further submits that in view of the judgment passed in LPA No. 446 of 2019, the respondent no. 1 namely, Satya Narayan Singh was not a workman and therefore, the case itself was not maintainable before the learned Tribunal. 13. The learned counsel also submits that as per the punishment order, liberty was given to the aforesaid employees to prefer a statutory appeal before the Managing Director of Food Corporation of India. He submits that they can still prefer the appeal and the same can be decided within the time-frame as may be stipulated by this Court. 14. Learned counsel appearing on behalf of the respondents, though has opposed the prayer of the petitioner, but has not been able to distinguish the aforesaid two judgments which have been relied upon by the petitioner. However, at the same time, the learned counsel has submitted that the employees cannot be left remediless and liberty may be granted to avail the statutory remedy as provided in the punishment order itself. 4 Findings of this Court 15. After hearing the learned counsel for the parties and considering the facts and circumstances of this case and going through the records of this case, this Court finds that the case of Jiten Chandra Modak is squarely covered by the judgment passed by this Court in W.P.(L) No. 2703 of 2018. This Court is of the view that there was no need to take prior approval from the learned Tribunal dealing with Reference Case No. 138 of 1997 to proceed against him in the matter relating to allegation of shortage of foodgrains and therefore, the finding of the learned Tribunal that in absence of prior approval there was a violation of section 33(1) of the Act of 1947, is perverse and is accordingly set-aside. 16. So far as the case of Satya Narayan Singh is concerned, his case is squarely covered by the judgment passed by this Court in LPA No. 446 of 2019 and from the punishment order itself, it is apparent that at the relevant point of time, he was working as AG-I(D) and as per the aforesaid judgement, persons working as AG-I(D) do not fall under the definition of workmen as defined under Industrial Disputes Act, 1947. 17. Consequently, the impugned award of the learned Tribunal so far relating to Complaint Case No. 7 of 2015, is hereby set-aside. 18. However, the respondents cannot be rendered remediless. Consequently, the liberty is reserved with the respondents to prefer the statutory appeal in terms of the punishment order before the Managing Director of Food Corporation of India within a period of two months from the date of receipt of certified copy of this order. It is further directed that if the appeal is filed within the aforesaid time, the Managing Director of Food Corporation of India shall decide the appeal expeditiously after going through the materials on record and granting an opportunity of personal hearing to the respondents. The final order be passed by the appellate authority within a period of four months from the date of filing of the appeal by the respondents and the final order be communicated to the respondents through speed post. 19. This writ petition is accordingly disposed of. 5 20. Pending interlocutory application, if any, is closed. Pankaj (Anubha Rawat Choudhary, J.) 6