The Food Corporation of India, a statutory Corporation constituted by and under the Food v. Vijayendra Kumar, son of Late R. T. Sin
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 6506 of 2016 The Food Corporation of India, a statutory Corporation constituted by and under the Food Corporations Act, 1964 having one of its Regional Offices at Khadya Bhawan, Vani-Vihar, P.O., P.S. and District Bhubaneswar, through the Assistant General Manager (Vigilance), Amitabh Kumar, Son of Shri Nathuni Kumar, working at Food Corporation of India, Regional Office, New Collectorate Building, Block-A, 4th Floor, Kutchery Road, Ranchi, P.S. Kotwali, P.O. and District Ranchi. … … Petitioner Versus Vijayendra Kumar, son of Late R. T. Singh, R/o S. K. Puri, Patna, P.S. Budha Colony, P.O. and District Patna, Bihar … … Respondent CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the Respondent --- ---
Legal Reasoning
this Court in W.P. (L) No. 2703 of 2018 and has referred to paragraph 20 to 23 of the said judgment wherein it has been held as under: - “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 2 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 that the dispute 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 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.” 3 6. The learned counsel has also submitted that in W.P. (L) No. 2703 of 2018 also, the pending dispute was reference Case No. 138/1997 which has been mentioned in paragraph 4 of the said judgment. 7. The learned counsel thereafter has referred to the order of punishment and has submitted that as per the order of punishment itself, the employee was entitled to avail the statutory remedy of appeal and it is still open to the employee to avail the remedy of appeal. In the judgment passed in W.P. (L) No. 2703 of 2018 also this Court has granted liberty to the concerned workman to avail the remedy of appeal against the punishment imposed. 8. The learned counsel submits that the present case is squarely covered by the aforesaid judgment. He submits that the impugned award be set-aside and appropriate order be passed. 9. Learned senior counsel appearing on behalf of the respondent has submitted that prior permission was required to be taken before changing the service condition and consequently there was a violation of Section 33(1) of the aforesaid Act of 1947. However, she submits that the respondent may be permitted to avail the statutory remedy of appeal without prejudice to all the points which may available and be raised before the appellate authority. 10. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the learned court while considering the point of maintainability has simply recorded that it was mandatory for the petitioner to take prior permission from the Tribunal before passing the order of penalty without recording any finding as to whether the pre-condition in terms of Section 33(1) and 33(2) of the aforesaid Act of 1947 are satisfied or not and only a reference has been made to the judgment passed by the Hon’ble Supreme Court reported in AIR 2002 SC 643. 11. This Court finds that admittedly the punishment imposed upon the concerned workman was only reduction to lower rank on the allegation of 4 non-adherence to the order of transfer and insubordination. This Court is of the considered view that merely because the order of punishment which has been passed as a consequence of the disciplinary proceeding which has a bearing in the pay scale or rank of the respondent the same was not sufficient to maintain the petition under Section 33 of the aforesaid Act of 1947. This aspect of the matter has been fully considered by this Court in W.P. (L) No. 2703 of 2018 in the paragraphs as quoted above. The learned counsel for the respondent has not been able to distinguish the judgement passed in W.P. (L) No. 2703 of 2018. 12. In view of the aforesaid facts and circumstances, this Court is of the considered view that the impugned award cannot be sustained in view of the judgment passed by this Court in W.P. (L) No. 2703 of 2018. Consequently, the impugned award involved in the present case is hereby set-aside. 13. However, the learned counsel for the petitioner has submitted that the respondent can still avail the remedy of appeal and the learned counsel for the respondent has also expressed the willingness to avail the remedy of appeal, this Court observes that the respondent may avail the remedy of appeal against the order of punishment involved in the present case within a period of three months from today. 14. If such an appeal is filed, the appellate authority shall consider the appeal of the respondent on merits and dispose of the same within a period of two months from the date of filing of the appeal. 15. The entire exercise be completed within five months. 16. This writ petition is accordingly disposed of with the aforesaid observations and directions. 17. Pending I.A., if any, is closed. (Anubha Rawat Choudhary, J.) Mukul 5
Arguments
: Mr. Nipun Bakshi, Advocate Mr. Shubham Sinha, Advocate : Mrs. M. M. Pal, Sr. Advocate Mrs. Manjushri Patra, Advocate Mrs. Mahua Palit, Advocate Mrs. Rukmini Kumari, Advocate 09/28th November 2024 1. 2. Heard the learned counsel appearing on behalf of the parties. This writ petition has been filed for the following reliefs: - “(i) For issuance of a writ of certiorari or any other writ/ order / direction for quashing and/or setting aside the award dated 22.01.2016 passed by Shri Ranjan Kumar Saran, the learned Presiding Officer, Central Government Industrial Tribunal No.1, Dhanbad, in Complaint Case No.03 of 2015, whereby the enquiry as well as the punishment order against the Respondent has been held illegal and unjustified; (ii) For issuance of any other appropriate writ/ order/ direction for grant of such other reliefs as may be consequential to quashing of the impugned award and for doing conscionable justice to the Petitioner.” 1 3. The learned counsel for the petitioner has submitted that a dispute in connection with overtime allowance was pending in Reference Case No. 138 of 1997 which was in relation to all the employees of the Bihar region and during the pendency of the aforesaid reference case, the private respondent was transferred and on account of non-adherence to the order of transfer passed by the employer, a punishment was ultimately imposed reducing him from the rank of Manager(D) to lower rank AG-I(D) on initial pay scale. It was alleged by the complainant (the respondent herein) that during the pendency of the Reference Case No. 138 of 1997 and Complaint Case No. 02/2014, the punishment of reduction of rank was imposed and the same was alleged to be in violation of Section 33(1) of the Industrial Disputes Act, 1947 and the Complaint Case No. 3/2015 was filed alleging that before passing the order of punishment the petitioner had not taken any permission from the tribunal and therefore the order of penalty was illegal and unjustified. 4. learned counsel submits The that admittedly the order of punishment was reduction in rank and it was arising out of non- compliance of order of transfer but the learned court while considering the maintainability of the case as to whether prior permission was to be taken from the Tribunal or not has only referred to the judgment passed by the Hon’ble Supreme Court and has not recorded any finding with respect to alleged violation of Section 33(1) of the aforesaid Act of 1947. 5. The learned counsel has further referred to the judgment passed by