The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos. 22006, 22008 & 22010 of 2014 M/s. Graphites India Limited -versus- 1. 1. Presiding Officer, Labour Court, …. …. Petitioner Sambalpur 2. 3. 2. G.C. Mohanty 4. (In W.P.(C) No.22006 of 2014 5. 3. Kamal Murgi (In W.P.(C) No.22008 of 2014) 4. Raju Jal (In W.P.(C) No.22010 of 2014) 6. Advocates appeared in the case For Petitioner : Opposite Parties
Legal Reasoning
“37. The Labour Court or Tribunal, therefore, while holding enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Sections 10(i)(c) and (d) of the Act nor can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the proportionality of punishment, as erroneously done in the instant case, for such a power can be exercised by the Labour Court or Tribunal only under Section 11-A of the Act.” 17. Mr. Mohanta, learned counsel appearing on behalf of the opposite party-workman has submitted that duly exercising its power under Section 33(2)(b) of the I.D. Act, the Labour Court declined to approve the order of dismissal passed by the management which was not found to be bona fide, the same being shockingly disproportionate to the charge of misconduct. He has also submitted that the impugned order passed by the Presiding Officer, Labour Court, Sambalpur does not suffer from any legal infirmity. 18. After having carefully gone through the impugned order passed by the Labour Court and the Supreme Court’s decisions as noted above, more specifically, the law clearly enunciated in case of John D’Souza v. Karnataka State Road Transport Corporation (supra), W.P.(C) Nos. 22006, 22008 & 22010 of 2014 7 of 9 we find force in the submissions advanced on behalf of the management. 19. In case of John D’Souza v. Karnataka State Road Transport Corporation (supra), the Supreme Court has noticed the judicial pronouncements on the limitation, scope and nature of exercise of power by a Labour Court under Section 33(2)(b) of the I.D. Act. After having noticed the precedents and the statutory provisions, the Supreme Court has held in no uncertain that a Labour Court or Tribunal cannot dwell upon the proportionality of punishment. 20. In view of the law laid down by the Supreme Court in case of John D’Souza v. Karnataka State Road Transport Corporation (supra) to the effect that a Labour Court or Tribunal while holding an enquiry under Section 33(2)(b) of the I.D. Act cannot dwell upon the proportionality of punishment, we have no other option but to interfere with the impugned orders passed by the Labour Court, Sambalpur. 21. In the aforesaid background, the impugned orders dated 06.06.2014 passed by the Presiding Officer, Labour Court, Sambalpur in all the aforesaid M.C. cases are hereby set aside. 22. The Presiding Officer, Labour Court, Sambalpur shall be required to pass orders afresh on the management’s application filed under Section 33(2)(b) of the I.D. Act preferably within a period of three (03) months from the date of receipt/production of certified copy of this order. W.P.(C) Nos. 22006, 22008 & 22010 of 2014 8 of 9 23. Accordingly, these writ petitions are allowed with the aforesaid observation and direction. Chief Justice (Chakradhari Sharan Singh) Judge (M.S. Raman) S. Behera Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-May-2024 13:20:54 W.P.(C) Nos. 22006, 22008 & 22010 of 2014 9 of 9
Arguments
Mr. Durga Prasad Nanda, Senior Advocate For Opposite Parties : Mr. L. Samantray, Addl. Government Advocate for State Mr. H.K. Mohanta, Advocate CORAM: THE CHIEF JUSTICE MR. JUSTICE MURAHARI SRI RAMAN JUDGMENT 02.05.2024 Chakradhari Sharan Singh, CJ. The petitioner, M/s. Graphites India Limited (hereinafter referred to as ‘the management’) has put to challenge in the present W.P.(C) Nos. 22006, 22008 & 22010 of 2014 1 of 9 writ applications filed under Article 226 of the Constitution of India three orders of the same date, i.e. 06.06.2014 passed by the Presiding Officer, Labour Court, Sambalpur in M.C. No.02 of 2011, M.C. No.10 of 2011 and M.C. No.6 of 2011, whereby the applications filed by the management under Section 33(2)(b) of the Industrial Disputes Act, 1947 (in short ‘the I.D. Act’) for approval of an order of dismissal of the opposite party no.2 (the workman) have been rejected. 2. The points involved in all the cases being identical in nature, they have been heard together and are being disposed of by the present common judgment and order. 3. For convenience, we are referring to the facts pleaded in W.P.(C) No.22006 of 2014 wherein, the order dated 06.06.2014 passed in M.C. No.02 of 2011 has been put to challenge. 4. We have heard Mr. Durga Prasad Nanda, learned Senior Counsel appearing on behalf of the petitioner-management and Mr. H.K. Mohanta, learned counsel appearing on behalf of the opposite party-workman. 5. During the pendency of an industrial dispute, a disciplinary proceeding was initiated against the opposite party-workman by the management which subsequently resulted in to passing of an order of dismissal from service by the management. 6. Section 33(2) of the I.D. Act stipulates that during the pendency of any proceeding in respect of an industrial dispute, the employer W.P.(C) Nos. 22006, 22008 & 22010 of 2014 2 of 9 may, in accordance with the standing orders applicable to a workman concerned in such dispute or in accordance with the terms of contract in the absence of any standing orders, alter the conditions of service applicable to the workman, immediately before the commencement of the proceeding; or for any misconduct, discharge or punish, whether by dismissal or otherwise, that workman; which is not connected with the dispute. 7. The proviso to clause-b of sub-Section 2 of Section 33 of the I.D. Act is at the core of the controversy in the present case, which reads thus: “Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.” 8. On bare perusal of the aforementioned proviso, it can easily be discerned that there are two condition precedents for discharge or punish, whether by dismissal or otherwise, a workman during the pendency of an unconnected pending industrial dispute, namely; (i) the workman is paid wages for one month; and (ii) an application has been made by the employer to the authority before which the proceeding is pending; “for approval of the action taken by the employer”. (Emphasis added) 9. The facts of the case are not in dispute. A proceeding was initiated against the opposite party-workman, when he was working as a Technician-Arc-Furnace in SMS Department, by the W.P.(C) Nos. 22006, 22008 & 22010 of 2014 3 of 9 management on 01.08.2009, on the charge of misconduct of refusal to work, negligence in discharge of duty, participating in illegal strike and willful disobedience to the lawful orders of the superiors. The workman was found to be guilty of misconduct in an enquiry held by the management and considering the seriousness of the charge, it proposed to impose the punishment of dismissal from service in accordance with the provisions under the certified standing orders of the management. The opposite party-workman was given an opportunity to reply against the proposed punishment. Later, he was dismissed from service by an order with effect from 03.03.2011 by the management. 10. It is noted that when the said order of dismissal was passed by the management, an industrial dispute being I.D. Case No.11/2008 to 18/2008 was pending between the management and the workman. It transpires from the impugned order passed by the learned Presiding Officer, Labour Court, Sambalpur that indisputably, the management had complied with the requirement of payment of wages for one month and that of making an application to the Labour Court for approval of action of the workman’s dismissal from service. In paragraph-5 of its impugned order, the Labour Court has opined that while dealing with an application under Section 33(2)(b) of the I.D. Act, it has to consider two things, namely, (a) whether the workman was dismissed from service on the basis of domestic enquiry conducted, observing all formalities without violation of principles of natural justice, and (b) W.P.(C) Nos. 22006, 22008 & 22010 of 2014 4 of 9 whether the punishment of dismissal of the workman was commensurate with the acts of misconduct levelled against him. 11. As regards the first consideration, the Labour Court found, based on the evidence adduced before him, that the enquiry was conducted observing the principles of natural justice and due opportunity was given to the workman to defend the charge levelled against him. The Labour Court specifically recorded that the report of the Enquiry Officer was based on the evidence collected during the enquiry and there was nothing to find any fault with the said report. The Labour Court further recorded that the domestic enquiry conducted by the management was fair and proper. 12. However, considering the second point, i.e., whether the punishment of dismissal of the workman was commensurate with the acts of misconduct or not, the Labour Court reached a conclusion that the management ought to have imposed some lesser punishment on the proof of charge levelled against him, instead of dismissing him from service. He recorded this finding in the wake of the fact that the workman was charged of not performing his duties on 05.07.2009 with other workmen in protest against an alleged assault on a regular workman. The Labour Court has noted in its impugned order that the workman had neither initiated any strike nor had he called for stoppage of work. He had rather, only responded to the call for refusal of work on a particular cause. Further, he had not directly caused any loss to the Company and, therefore, the punishment of dismissal from service of the workman was not commensurate with the acts alleged against him. W.P.(C) Nos. 22006, 22008 & 22010 of 2014 5 of 9 13. After having opined thus, the Labour Court rejected the management’s application filed under Section 33(2)(b) of the I.D. Act, holding that the management’s action in dismissal of the workman from service with effect from 03.03.2011 could not be approved. 14. The facts and the background of the other two cases are almost identical based on which the Labour Court has rejected the management’s applications under Section 33(2)(b) of the I.D. Act. 15. Assailing the impugned order of the Labour Court, Mr. Nanda, learned Senior Counsel appearing on behalf of the petitioner- management has drawn our attention to the following decisions of the Supreme Court of India:- (1) Tata Iron and Steel Co. Ltd. v. S.N. Modak; AIR 1966 SC 380; (2) Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma; (2002) 2 SCC 244; and (3) John D’Souza v. Karnataka State Road Transport Corporation; (2019) 18 SCC 47. He has also placed reliance on a division Bench decision of this Court in case of The Management of Orissa Road Transport Company Limited v. The Workman T. Bangali Patra, reported in 1991 (II) OLR 515. 16. Explaining the limitation and scope of the power of a Labour Court while considering an application under Section 33(2)(b) of the I.D. Act with reference to the aforementioned decisions, he has W.P.(C) Nos. 22006, 22008 & 22010 of 2014 6 of 9 submitted that it was not within the jurisdiction of the Labour Court to have entered into the proportionality of the punishment imposed by the management. He has laid great emphasis on the law laid down by the Supreme Court in case of John D’Souza v. Karnataka State Road Transport Corporation (supra), paragraph-37 of which reads as under: