The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(L) No. 2703 of 2018 The Food Corporation of India through its General Manager (Region), Sandeep Kumar Pandey, aged about 41 years, son of Shri R.S.- Pandey, having its Regional Office at Arunachal Bhawan, Exhibition Road, P.O. P.S. and District Patna, Bihar … … Petitioner Versus Hans Raj Singh, Son of Rameshwar Singh, R/o village Kutubpur, P.O. Kotwapati Rampur, P.S. Boriganj and District Sarang – Chhapra, Bihar … Respondent … CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner --- : Mr. Nipun Bakshi, Advocate : Mr. Shubham Sinha, Advocate : Mr. Rahul Kumar, Advocate --- Heard the learned counsel for the parties. For the Respondent 08/01.07.2024 2. This writ petition has been filed challenging the award dated 25-10-2017 (Annexure-8) passed by learned Presiding Officer, Central Government Industrial Tribunal No.1, Dhanbad, by which the punishment imposed on the respondent workman pursuant to disciplinary proceedings has been held to be illegal and unjustified and the petitioner has been directed to restore back the respondent to higher post with full pay and allowances. 3. The learned counsel for the petitioner, while assailing the impugned award, has submitted that the award arises out of Complaint Case No.10 of 2015, which was filed by the respondent before the learned Industrial Tribunal alleging violation of Section 33 of Industrial Dispute Act, 1947. He has submitted that the foundational jurisdiction to entertain such complaint was not made out by the respondent workman and accordingly, the complaint itself was not maintainable. The learned counsel has referred to the provisions of Section 33 and 33A of Industrial Dispute Act, 1947. 4. The learned counsel further submits that a general dispute covering all workmen was pending before the learned Industrial Tribunal in Reference Case No.138 of 1997 and the dispute was in relation to entitlement of overtime allowance. He submits that during the pendency of the reference, a charge sheet was issued to the 1 respondent on account of misconduct relating to fake procurement of food grains and the respondent faced disciplinary proceedings and ultimately, a punishment was imposed whereby he was reverted to the
Legal Reasoning
post of AG III (D) in the initial pay to the post. The learned counsel has submitted that the general dispute covering all the workmen in connection with overtime allowance had nothing to do with the disciplinary proceeding which was initiated against the workman and the provisions of Sections 33 and 33A of the Industrial Disputes Act stipulate that the alleged misconduct must be linked to the pending dispute. 5. In the present case, the punishment arising out of disciplinary proceedings on account of misconduct has culminated in having an impact in his pay scale, but the same cannot be a reason to hold that the dispute was linked with the general dispute of overtime allowance. The learned counsel has also submitted that the workman in his petition filed under Section 33 had referred to both the sections i.e. 33 (1) and 33 (2) of the Industrial Disputes Act and the maintainability of the complaint case was disputed by the petitioner-management by filing show cause stating that there was no requirement of seeking any prior or subsequent approval as there was no contravention of Section 33 (1) or 33 (2) of the Industrial Dispute Act, 1947. 6. The learned counsel has also referred to the evidence led on behalf of the workman and has submitted that evidences are primarily on the merit of the case and so far as the dispute as to whether the case was maintainable and how the alleged misconduct was linked with Over Time Allowance (OTA), no evidence was led to that effect. The learned counsel has also referred to Para 9 of the reply filed by the management before the learned Industrial Tribunal that the complainant ought to have approached the appellate authority against the order of punishment passed by the disciplinary authority as there is a statutory appellate forum under Regulations 69 and 70 of Food Corporation of India and (Staff) Regulations, 1971. The learned counsel has submitted that even today the respondent workman can avail the appellate remedy, but so far as the impugned award is 2 concerned, the same calls for interference as the learned Tribunal has wrongly assumed jurisdiction on a complaint filed by the respondent. 7. The learned counsel has relied upon a judgment passed by the Hon’ble Supreme Court reported in (2021) 12 SCC 38 (Sri Dorairaj Spintex -vs- R. Chittibabu and Others), Paragraph Nos. 8-12 and has submitted that the earlier judgment passed by the Hon’ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others reported in (2002) 2 SCC 244 has been followed. The learned counsel submits that had it been an order of dismissal, then there was a requirement to have post facto approval if it was unconnected and in case, the misconduct was connected, then there is a requirement of prior approval, but so far as the present misconduct is concerned, the same being unconnected and the punishment is not a punishment of dismissal, therefore, there was neither any requirement of prior approval, nor any requirement of post approval. He has also relied upon the judgment passed by the Hon’ble Supreme Court in the case of Blue Star Employees’ Union v. Ex Off. Principal Secretary to Government reported in (2000) 8 SCC 94 paragraph 5 to submit that contravention of provisions of Section 33 of the Industrial Dispute Act is the foundation for exercise of power under Section 33A of the Act. He submits that when the foundation was missing, the entire proceeding is vitiated as without jurisdiction and therefore, the impugned award calls for interference in writ jurisdiction. 8. The learned counsel appearing on behalf of the respondent workman while opposing the prayer has submitted that the learned Tribunal has elaborately discussed the point of maintainability and it was not in dispute that the overtime allowance was linked with the basic pay of the workman. He submits that once the pay was reduced, then the entitlement of the workman to overtime allowance automatically got reduced and this happened during the pendency of Reference Case No. 138 of 1997 dealing with the dispute regarding entitlement of overtime allowance with respect to all the workmen. He submits that since the punishment imposed by the management had a 3 bearing on the entitlement of overtime allowance, therefore the case was maintainable and the impugned award having considered, the same does not call for any interference. 9. Without prejudice to the aforesaid submissions, the learned counsel has also relied upon the judgment reported in (2021) 12 SCC 38 (supra) paragraph 9 and submits that whether a dispute is connected or not is to be determined on the basis of facts of each case and with respect to facts of the present case, the dispute was clearly linked. Without prejudice to the aforesaid submission, the learned counsel submits that in case, this Court is inclined to interfere with the impugned award, his right to appeal may remain intact and appropriate time be granted so that he may not be rendered remedy less. 10. After hearing the learned counsels for the parties and considering the facts and circumstances of this case, it is not in dispute that a reference being Reference Case No.138 of 1997 was pending before the learned Tribunal and the dispute was in relation to entitlement of overtime allowance of all the workers. During the pendency of that dispute, the respondent workman was issued charge sheet on account of commission of grave misconduct by accepting CMR stock without checking of quality and issuance of quality certificate and purchase-cum-payment voucher and simultaneously showing issuance of that stock clandestinely which ultimately was found fake as neither the said stocks (rice) were physically found purchased, nor physically issued on the given dates and only paper was created to commit recycling of stock. The disciplinary authority had passed an order of punishment dated 28-07-2015 and the punishment was reduction to the lower post of AG III (D) with initial pay of reduced post. It was this punishment which was alleged to be linked with the pending dispute bearing Reference No.138 of 1997 on the ground that it amounts to affect the overtime allowance. 11. After being imposed with the said punishment of reduction to the lower post, the respondent had filed a complaint under Section 33 of Industrial Disputes Act, stating in paragraph 2 as under: “2. That an order of punishment dated 28/07/2015 is passed against the workman whereunder both the workman are reduced in rank from 4 AG II (D) to AG III (D) in the initial scale of pay of AG III (D), which is clear cut alteration in their service condition as neither the OP has obtained any permission as required under Sec 33 (1) nor obtained any approval as provided under Sec 33 (2) of the ID Act, therefore, the order of punishment is illegal & unjustified on this ground alone.” 12. The petitioner had filed the reply statement and a specific objection was taken with regard to maintainability stating that the matter was not connected with the pending dispute bearing Reference Case No.138 of 1997, nor the complainant was discharged or dismissed from service. Hence, there was no requirement of seeking any prior or subsequent approval, and there was no contravention of
Decision
Section 33 (1) or (2) of the Industrial Dispute Act. The writ petitioner had narrated the aforesaid misconduct and the order of punishment imposed, and had also supported its action by referring to the inquiry proceedings. 13. The learned Tribunal formulated the following three points for consideration: 1 “Whether the complainant is workman and the present complaint is maintainable? 2 Whether at BSWC Chhapra, there was procurement of food grains on 25.03.2013 & 26.03.2013 and issue of food grain on 29.03.2013 & 30.03.2013? 3 Whether the complainant is guilty for misconduct as mentioned in memorandum and punishment dated 28.07.2015 is legal & justified? If not to what relief the complainant is entitle to?” 14. Before the learned Tribunal, the evidences were produced on behalf of the parties. 15. The bone of contention between parties during the course of argument is with regard to point no. (1) as formulated by the learned Tribunal. The findings of the learned Tribunal with regard to point no.1 is as follows: “Point no.1. The complainant is workman under ID Act. He is mere a clerk and his OTA is linked with the basic pay are admitted by the OP. There is no denial either in WS of the Opp. Party or in any documents. The complainant is entitled to get OTA and pending dispute is about OTA is also not denied by the OP rather the aforesaid facts are admitted by the Opp. Party. It is also an admitted fact that reference no. 138/97 is in respect of all the workmen of Bihar Region, therefore admittedly, the complainant is concerned with ref no 138 /97. Due to the alleged misconduct the complainant was placed under suspension on 08.04.2013 without serving any charge sheet as such alteration in service condition started w.e.f. the date of suspension. The charge sheet was issued on 15.01.2014 and after domestic inquiry he was reverted to the post of AG 5 pay was reduced then his (D) in the initial pay to that post. Since his entitlement to get OTA is also reduced and the said change during the pendency of reference no 138/97 is violation of Sec 33 (1) of the ID Act and for any such violation there is express provision to file a complaint under Sec 33 (A) of the ID Act and if complaint is filed the Tribunál has to adjudicate the matter as if it were a dispute referred or pending before it in accordance with the provision of the Act and shall submit award to the appropriate government. In view of the above it is held that the complainant is workmen and concerned with reference 138/97 and by reducing his pay & post the entitlement of OTA is also reduced, therefore, this change is also connected to the pending dispute and compliance of Sec 33 was mandatory on the part of OP and thus present complaint is maintainable. Original ref. 138 of 97 was also pending on the date of alteration of service condition i.e. on 28.07.15 in view of section 20 (3) read with section 17 (A)of the I.D. Act as award was not enforceable on 28.07 2015 therefore, this complaint petition is also maintainable.” 16. In the judgment passed by the Hon’ble Supreme Court reported in (2021) 12 SCC 38 (supra), the object and purpose of the amendment has also been considered. The provisions of Section 33 have been elaborately dealt with and it has been held as under: “8. The basic premise underlying Section 33(1) is that during the pendency of the conciliation proceedings before a Conciliation Officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, an employer is prohibited from: (a) altering the conditions of service of the workmen; or (b) dismissing, discharging or punishing the workmen in respect of any matter or misconduct connected with the dispute save with the express permission in writing of the authority before which the proceeding is pending. Both in the context of clause (a) as well as clause (b) of sub-section (1), the crucial words are “connected with the dispute”. Clause (a) of sub- section (1) deals with an alteration of the conditions of service in regard to any matter connected with the dispute. Clause (b) deals with discharge or punishment, whether by way of dismissal or otherwise, of a workman for any misconduct connected with the dispute. Where the connection with the dispute exists, Section 33(1) requires the prior permission in writing of the authority before whom a proceeding is pending. 9. On the other hand, Section 33(2) applies to: (i) an alteration of the conditions of service in regard to a matter not connected with the dispute; or (ii) the discharge or punishment, whether by way of dismissal or otherwise, of a workman for misconduct which is not connected with the dispute. The distinction between sub-section (1) and sub-section (2) lies in whether the action which is proposed by the employer during the pendency of a conciliation proceeding is or is not connected with the dispute. Whether the action is connected to the dispute has to be determined on the basis of the facts of each case. 10. When the ID Act was enacted, Section 33 imposed a ban on the employer discharging, dismissing or punishing a workman during the pendency of proceedings before the Tribunal and other specified authorities “except for misconduct not connected with the dispute”. By amending Act 48 of 1950, Section 33 was substituted and a complete ban 6 was imposed against discharge, dismissal or punishment of a workman during the pendency of proceedings before the Court and other specified authorities. The right of the employer to take action even for misconduct was withdrawn. Parliament being conscious of the need for discipline in industry amended the provision by substituting Section 33 by Act 36 of 1956 so as to restore to the employer the right to take punitive action in specified conditions. 11. The impact of the legislative change was noticed in a judgment of three Judges of this Court in Straw Board Mfg. Co. Ltd. v. Govind [Straw Board Mfg. Co. Ltd. v. Govind, 1962 Supp (3) SCR 618: AIR 1962 SC 1500], K.N. Wanchoo, J., speaking for the three-Judge Bench observed: (AIR pp. 1502-03, para 3) “3. Before however we turn to the interpretation of the proviso we may refer to the circumstances in which Section 33(2) came to be enacted. Originally there was no such provision like Section 33(2) in the Act and the only provision to be found therein corresponded to the present Section 33(1). The object behind enacting Section 33 as it was before the amendment of 1956 was to allow continuance of industrial proceedings pending before any authority prescribed by the Act in a calm and peaceful atmosphere undisturbed by any other industrial dispute. The plain object of the section was to maintain the status quo as far as possible during the pendency of any industrial dispute before a tribunal. But it seems to have been felt that Section 33, as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as to whether such alteration or such an order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service, etc. which were not connected with the dispute pending before an Industrial Tribunal. For the same reason it was felt that the authority of the employer to dismiss or discharge a workman should not be completely taken away where the dismissal or discharge was dependent on matters unconnected with the dispute pending before any tribunal. At the same time it seems to have been felt that some safeguards should be provided for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. Consequently Section 33 was redrafted in 1956 and considerably expanded. It is now in five sub-sections while before 1956 it consisted practically of what is now sub-section (1).” including Chartered Bank v. Employees' Union This decision was also confirmed by a Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma [Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, (2002) 2 SCC 244 : 2002 SCC (L&S) 279 : AIR 2002 SC 643] . 12. These provisions have been interpreted in several decisions of this Court [Chartered Bank v. Employees' Union, (1960) 3 SCR 441: AIR 1960 SC 919]; Tata Oil Mills Co. Ltd. v. Workmen [Tata Oil Mills Co. Ltd. v. Workmen, (1964) 7 SCR 555: AIR 1965 SC 155]; P.D. Sharma v. SBI [P.D. Sharma v. SBI, (1968) 3 SCR 91: AIR 1968 SC 985]; Air India Corpn. v. V.A. Rebellow [Air SCC 814]; Workmen v. Sudder Office [Workmen v. Sudder Office, (1972) 4 SCC 746]; and Mahendra Singh Dhantwal v. Hindustan Motors Ltd. [Mahendra Singh Dhantwal v. Hindustan Motors Ltd., (1976) 4 SCC 606: 1977 SCC (L&S) 20] Where the termination for misconduct is not connected to the industrial dispute, Section 33(2)(b) recognises the India Corpn. v. V.A. Rebellow, (1972) 1 7 authority of the employer to initiate disciplinary action while at the same time imposing safeguards. They are intended to balance the disciplinary jurisdiction of the employer with the need to ensure that there is no victimisation of the workmen.” 17. The judgment passed in the case of Straw Board Manufacturing Co. Ltd., Saharanpu v.s. Govind reported in AIR 1962 SC 1500 has been taken into consideration along with the subsequent judgment in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others reported in (2002) 2 SCC 244. 18. In the judgment passed in the case of Blue Star Employees’ Union v. Ex Off. Principal Secretary to Government reported in (2000) 8 SCC 94, it has been held as follows: “4. A complaint can be made to the Tribunal under Section 33-A of the Act if there has been violation or contravention of the provisions of Section 33 of the Act and if it is found that there has, in fact, been such a contravention the Tribunal can proceed to adjudicate the dispute contained in a complaint on its merits. Thus, violation or contravention of the provisions of Section 33 of the Act would be the basic question that arises for consideration and before giving any relief to an aggrieved employee under this section, the Tribunal has to find out whether the employer's action falls within one of the following prohibitions contained in Section 33 of the Act: (i) if the dispute pending adjudication has nothing to do with the alteration in conditions of service of a workman in contravention of Section 33(1)(a) of the Act or alteration of conditions of service of a “protected workman” within Section 33(1) of the Act; (ii) discharges or punishes a workman by dismissal or otherwise for a misconduct connected with the pending dispute without obtaining prior express permission in writing of the appropriate authority as required by Section 33(1)(b) of the Act; (iii) discharges or punishes a “protected workman” by dismissal or otherwise for a misconduct not connected with the pending dispute, without obtaining prior express permission the appropriate authority as required by Section 33(3)(b) of the Act read with Section 33(1)(b) of the Act; or (iv) discharges or punishes a workman by dismissal or otherwise for a misconduct not connected with the pending dispute, without complying with the provisions of proviso to Section 33(2)(b) of the Act. in writing of 5. Thus, the contravention of the provisions of Section 33 of the Act is the foundation for exercise of the power under Section 33 (sic 33-A) of the Act. If this issue is answered against the employee, nothing further survives for consideration or action by the Tribunal under Section 33 (sic 33-A) of the Act. In other words, an application under Section 33-A of the Act without proof of contravention of Section 33 of the Act would be incompetent. This is the view expressed by this Court in several decisions including the 8 decisions in Punjab National Bank Ltd. v. Workmen [(1959) 2 LLJ 666: AIR 1960 SC 160], Punjab Beverages (P) Ltd. v. Suresh Chand [(1978) 2 SCC 144: 1978 SCC (L&S) 165: (1978) 2 LLJ 1], Syndicate Bank Ltd. v. K. Ramanath V. Bhat [(1967) 2 LLJ 745: AIR 1968 SC 231]. Indeed this Court in Orissa Cement Ltd. v. Workmen [(1960) 2 LLJ 91 (SC)] while dealing with the identical provisions as contained in Sections 33 and 33-A of the Act in a complaint made under Section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950 examined this contention that the finding of the Appellate Tribunal in the proceedings instituted under Section 23 of the Appellate Tribunal Act amounted to res judicata and it was not open to the Tribunal to consider the validity or the propriety of the impugned order of discharge in the reference. The Tribunal in that case had held that on the earlier occasion the Appellate Tribunal had found that there was no contravention of Section 22 and that was really decisive of the proceedings and held that the alternative finding made in the said proceedings on the merits was no more than obiter and cannot be pleaded in support of the bar of res judicata. This Court was not prepared to hold that this view is erroneous and, therefore, the Tribunal was justified in dealing with the merits of the dispute. 6. In the present case, we have been taken through in detail the award made in the case of Balanarsimha and Mallesh and we find that the Tribunal has not focussed its attention to the first of the question whether there has been any contravention of Section 33 of the Act to enable it to proceed further to decide whether the employee is entitled to any relief under the Act or not. To merely consider the question that the employee is not entitled to the relief without examining firstly the question whether the act complained of is in contravention of Section 33 of the Act will be one made as observed by this Court in Orissa Cement Ltd. case [(1960) 2 LLJ 91 (SC)] as obiter or as one made without fulfilling the condition precedent to exercise of power under Section 33-A of the Act and, therefore, (sic) could not proceed to give a finding as to whether the termination of service of the workman is justified or not.” 19. This Court finds that admittedly the punishment imposed upon the workman was only reduction to lower post on the allegation of fake procurement of food grains and accordingly no punishment of dismissal or removal was imposed by the impugned action of the management in the proceedings before the learned Tribunal. 20. This Court is of the considered view that the allegation in the disciplinary proceeding with regard to fake procurement of rice had no connection whatsoever with the general dispute between the workman and the present petitioner and therefore it cannot be said that the dispute in connection with fake procurement was linked with overtime allowance. This Court is of the considered view that merely because the order of punishment which has been imposed as a consequence of the disciplinary proceeding had a bearing in the pay scale of the 9 respondent and consequently may have bearing in overtime allowance, the same was not sufficient to maintain the petition under Section 33 of the Industrial Dispute Act. On bare reading of the provisions of Section 33 and 33A, they clearly indicate 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. The provision of law does not contemplate any prior or post-approval in unconnected dispute if the punishment is not of dismissal. 21. This Court is of the considered view that the finding of the learned Tribunal that compliance of Section 33 by the petitioner- management is mandatory merely because the complainant is workmen and is concerned with reference 138/97 and that by reducing his pay & post his entitlement of overtime allowance is also reduced, cannot be sustained in law as the pending dispute regarding overtime allowance has no connection with the dispute regarding fake procurement of food grains. This Court is of the considered view that even if the punishment imposed has a bearing on pay scale and correspondingly on entitlement on overtime allowance the general dispute regarding overtime allowance to all workmen cannot be said to be connected to the dispute regarding fake procurement of food grains for which the workman was punished. 22. Having held the dispute that in connection with fake procurement of rice had no connection with the dispute relating to overtime allowance, this Court is of the considered view that the complaint filed by the respondent workman under section 33 of Industrial Dispute Act was not maintainable and the finding of the learned Tribunal that the petition filed under section 33 of the Industrial Disputes Act, 1947 was maintainable is perverse and therefore, the impugned award is set aside. 23. Since the petitioner have themselves submitted that the respondent can still avail the remedy of appeal, this Court observes that the respondent may avail the remedy of appeal against the order of punishment arising out of the allegation of fake procurement of 10 food grains within a period of 6 months from today and if such an appeal is filed, the appellate authority shall consider the appeal of the respondent on merits and dispose of the same as expeditiously as possible. Saurav (Anubha Rawat Choudhary, J.) 11