Y. Ramana Rao v. M/s Timken India Limited

: Mr. Ajay Kumar Trivedi, Advocate : Mr. Jeetendra Kumar Mishra, Advocate : Mr. Indrajit Sinha, Advocate : Ms. Puja Agarwal, Advocate --------------- O R D E R 18th September 2023 Per, Shree Chandrashekhar, J. I.A. No. 6460 of 2023 The appellant has filed this interlocutory application under section 5 of the Limitation Act seeking condonation of delay of 174 days in filing the present Letters Patent Appeal. The respondents are not opposing this application. In view of the statements made in this interlocutory application,

#2. the delay of 174 days in filing this Appeal is condoned. 3. I.A. No. 6460 of 2023 is, accordingly, allowed. LPA No. 471 of 2022

#4. Y Ramana Rao who was engaged under M/s. Tata Timken Limited (now M/s. Timken India Limited) through an appointment letter dated 19th July 1991, initially on probation for 12 months, was terminated from service vide letter dated 09th November 2005 which gave rise to a 2 LPA No. 471 of 2022 cause for approaching the Labour Court at Jamshedpur in B.S. Case No.6 of 2005. 5. The challenge by the appellant to the termination order contained in the letter dated 09th November 2005 failed in B.S. Case No.6 of 2005 and against the order dated 22nd March 2012 passed by the Labour Court he approached the writ Court in W.P.(L) No.3447 of 2012. 6. following reasons: The writ Court dismissed WP(L) No. 3447 of 2012 for the “After hearing learned counsel for the parties, on the basis of material available on record and on perusal of the impugned award, it appears that petitioner was informed by the respondents by taking his signature on the appraisal form Exhibits- A/1 to A/2, showing poor performance followed by transfer and stoppage of increments, but petitioner has not improved himself and as such, no compensation can be granted. The impugned order does not suffer from any legality, accordingly, the same is hereby affirmed. The writ petition is dismissed. Three months salary ought to have been paid to the petitioner, which shall be paid, if not already paid with interest within 30 days from communication of this order. The interest shall be paid to the petitioner of Bank rate or @ 7.5% per annum as awarded by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in (2008) 12 SCC 208.”

#7. Mr. Ajay Kumar Trivedi, the learned counsel for the appellant submits that sufficient cause was not shown by the employer for dispensing with the appellant’s services and he was not paid termination benefits. The case pleaded by the appellant that his work was commendable and the employer promoted and designated him as an Executive was controverted by M/s. Timken India Limited, which asserted that, in fact, he was re-appointed on fresh terms and conditions. The appellant put forth another plea that in the past a similar attempt was made to terminate his services and he was not paid for the period till the date of termination, and not even the termination benefits were paid to him. 8. On the other hand, M/s. Timken India Limited set up a defence to support the termination of the appellant from service on the ground that between 2002 to 2004 the appellant could not achieve the target and he was duly informed about his poor performance through emails. It is further pleaded that the performance of the employee was regularly being monitored and on finding that the sales performance of the area was below 3 LPA No. 471 of 2022 the agreed target, a conscious decision was taken to dispense with his services by giving termination benefits to him. 9. examined himself and laid in evidence appointment letter dated 19th July In the proceeding before the Labour Court, the appellant 1991 vide Exhibit 1, letter dated 22nd September 1992 vide Exhibit 2, appreciation letter dated 08th October 1992 vide Exhibit 3, confirmation letter vide Exhibit 4, internal advertisement vide Exhibit 5, promotion letter dated 30th August 1997 vide Exhibit 6, confidential letter dated 23rd July 1999 vide Exhibit 7, letter of award vide Exhibit 8, MD Gift scheme vide Exhibit 9, certificate of achievement for the year 2001 vide Exhibit 10, office order (pay slip) vide Exhibit 11, termination letter dated 09th November 2005 vide Exhibit 12, letter for final settlement vide Exhibit 13 and office order/letter dated 09th January 2006 vide Exhibit 14. His deposition in the Court was in tune with the allegations made by him in the complaint. However, in the cross-examination, he admitted that he did not produce the postal receipt regarding the posting of the letter dated 09th January 2006 vide Exhibit 14 which was the final settlement letter. He further admitted that after being transferred he was given a fresh appointment; and, he also admitted his signature over the appraisal forms for the years 2001, 2002, and 2004. 10. The Labour Court took note of the depositions of the Management witnesses O.P.W.1 and O.P.W.2 as well as the Board Resolution and the Company’s letters dated 29th March 1993 vide Exhibit E and dated 18th May 1998 vide Exhibit F etc. After having considered the materials on record, the Labour Court finally came to a conclusion that dispensing with the services of the employee under section 26 of the Bihar Shops and Establishments Act, 1953 was valid and legal; he was offered 3 months’ salary in lieu of notice as per contract and; there were reasonable grounds to dispense with his services. 11. Section 26 of the Bihar Shops and Establishments Act, 1953 provides that no employer shall dismiss or discharge or otherwise terminate the employment of any employee who has been in employment continuously for a period of not less than six months. Section 26 however provides an exception to the main provision. In that, for a reasonable cause and after giving at least one month’s notice or one month’s wages in lieu 4 LPA No. 471 of 2022 of notice, the employee can be dismissed or discharged, or otherwise terminated from employment. The first and second proviso to section 26 refer to termination on the charge of misconduct which is not the case here. Sub-section (2) to section 26 provides the grounds on which a dismissed or discharged employee or whose employment was otherwise terminated may make a complaint in writing in the prescribed manner to a prescribed authority within 90 days. 12. Section 26 of the Bihar Shops and Establishments Act, 1953 reads as under: “26. Notice of the dismissal or discharge— (1) No employer shall dismiss or discharge or otherwise terminate the employment of any employee who has been in his employment continuously for a period of not less than six months, except for a reasonable cause and after giving such employee at least one month’s notice or one month’s wages in lieu of such notice: Provided that such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the State Government, supported by satisfactory evidence recorded at an enquiry held for the purpose: Provided further that an employee who has been in continuous employment for a year or more and whose services are dispensed with otherwise than on a charge of misconduct shall also be paid compensation equivalent to fifteen days average wages for every completed year of service and any part thereof in excess of six months before his discharge in addition to the notice or pay in lieu of notice as prescribed above. (2) Every employee, dismissed or discharged or whose employment is otherwise terminated, may make a complaint in writing in the prescribed manner, to a prescribed authority within 90 days of the receipt of the order of dismissal or discharge or termination of employment on the one or more of the following grounds, namely: — there was no reasonable cause for dispensing with his services; or no notice was served on him as required by sub-section (1); or he has not been guilty of any misconduct as held by the employer; or no compensation as prescribed in sub-section (1) was paid to him before dispensing with his service. (3) Notwithstanding anything contained in sub-section (2), where the order of dismissal or discharge was received by an employee at any time before the commencement of the Bihar Shops and Establishments (Amendment) Act, 1959, he may make a complaint in writing in the prescribed manner before a prescribed authority within sixty days of the commencement of the said Act: Provided that such complaints, if any, pending before an authority prescribed prior to the commencement of the said Act shall be deemed to have been duly filed before the authority prescribed after such commencement and the said authority shall dispose the same in accordance with the provisions of this Act. (4) The prescribed authority may condone delay in filing such a complaint if it is satisfied that there was sufficient cause for not making the application within the prescribed time. (5)(a) The prescribed authority shall cause a notice to be served on the employer relating to the said complaint, record briefly the evidence adduced by the parties, hear them and after making such enquiry as it may consider necessary pass orders giving reasons therefor. (b) In passing such order the prescribed authority shall have power to give relief to the employee by way of reinstatement or money compensation or both. 5 LPA No. 471 of 2022 (6) The decision of the prescribed authority shall be final and binding on both the employer and employee.”

#13. From a glance at the aforesaid provisions under section 26, there can be no measure of doubt that the employer has a right under section 26 to dispense with services of an employee (i) for reasonable cause or (ii) on a finding of misconduct. The Labour Court has rendered a decision that there was reasonable cause for M/s. Timken India Limited to dispense with services of the employee. As we have noticed above, sufficient materials were before the Labour Court on scrutiny of which, particularly admissions of the employee, the Labour Court came to such a conclusion. The writ Court referred to “State of Uttar Pradesh v. Dinanath Rai” (1969) 3 SLR 646, “Pepsico India Holding Private Limited v. Krishna Kant Pandey” (2015) 4 SCC 270 and “Madhya Bharat Gramin Bank v. Panchamlal Yadav” 2021 SCC Online SC 759 and rightly declined to interfere with the order dated 22nd March 2012 passed by the Labour Court. 14. In “Pepsico India Holding Private Limited v. Krishna Kant Pandey” (2015) 4 SCC 270 the Hon’ble Supreme Court has held as under:

#13. Considering the entire facts of the case and the findings recorded by the Labour Court, prima facie we are of the view that the High Court has exceeded in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India in interfering with the finding of facts recorded by the Labour Court. It is well settled that the High Court in the guise of exercising its jurisdiction normally should not interfere under Article 227 of the Constitution and convert itself into a court of appeal.

#14. While discussing the power of the High Court under Articles 226 and 227 of the Constitution interfering with the facts recorded by the courts or the tribunal, this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, held as under: (SCC pp. 458-59, para 17) this Court the observations of “17. In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be in Bathutmal Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at AIR p. 1301 of the Report as follows: (SCC p. 864, para 7) ‘7. The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath (AIR p. 217, para 14) that the “power of superintendence conferred by Article 227 is, as pointed out by 6 LPA No. 471 of 2022 Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [AIR 1951 Cal 193] , to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors”. This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bora v. Commr. of Hills Division [AIR 1958 SC 398] and it was pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case: (AIR p. 413, para 30) “30. … It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.” .……………………………………………………………………………… ………………………………………………………………………………. 16. In Indian Overseas Bank v. Staff Canteen Workers' Union, this Court considered a similar question with regard to the power of the High Court under Article 226 against the findings recorded by the Industrial Tribunal. Reversing the decision of the Single Judge and restoring the fact-finding decision of the Tribunal, this Court held: (SCC pp. 259-60, para 17) jurisdiction, by “17. The learned Single Judge seems to have undertaken an exercise, impermissible for him liberally in exercising writ 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 a 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. The Division Bench was not only justified but well merited in its criticism of the order of the learned Single Judge and in ordering restoration of the award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned Single Judge and the judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials which constituted ample and sufficient basis for recording its findings, as it did, and the manner of consideration undertaken, the objectivity of approach adopted and reasonableness of findings recorded seem to be unexceptionable. The only course, therefore, open to the writ Judge was to find out the satisfaction or otherwise of the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-finding authority and not embark upon an exercise of reassessing the evidence and arriving at findings of one's own, altogether giving a complete go-by even to the facts specifically found by the Tribunal below.”

#15. There was no error committed by the Labour Court in appreciation of the materials laid during the trial of B.S. Case No.6 of 2005 and the decision of the Labour Court is based on the materials laid during the trial. Now in a situation like the present, the writ Court shall be denuded of its powers under Article 226 of the Constitution of India to reappraise the materials laid before the Labour Court and to arrive at a 7 LPA No. 471 of 2022 different conclusion. In the present Letters Patent Appeal, we do not see any ground to interfere with the writ Court’s order and, accordingly, L.P.A No.471 of 2022 is dismissed. (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Saurav/Pankaj-