The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 16091 of 2024 The Management of Gomardih Dolomite Quarry, Mumbai and another …. -Versus- Petitioners Sri Hamiya Kumar Patel …. Opposite Party Advocates appeared in this case : For Petitioners : Mr. P.P. Mohanty, Advocate
Legal Reasoning
For Opposite Party: Mr. A. Kanungo, Advocate CORAM: THE HON'BLE MR. JUSTICE ARINDAM SINHA THE HON’BLE MR. JUSTICE M.S. SAHOO AND J U D G M E N T ------------------------------------------------------------------------------------- Dates of hearing: 12th November, 2024 and 10th January, 2025 Date of judgment: 10th January, 2025 ------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Mr. Mohanty, learned advocate appears on behalf of petitioner-management and submits, impugned is award dated 30th June, 2023 made by the Central Government Industrial Tribunal- Page 1 of 7 cum-Labour Court. In answering the reference the Tribunal purported to exercise power under section 11-A in Industrial Disputes Act, 1947. The section is reproduced below. “11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. - Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:” (emphasis supplied) 2. On query made he points out from impugned award there was reference order dated 30th April, 2013. The Tribunal was to W.P.(C) No.16091 of 2024 Page 2 of 7 answer on the termination from service, whether justified or legal and if not, to what relief the workman is entitled to. 3. There was made termination order dated 4th February, 2012 on charge of absence from work without prior intimation amounting to misconduct within meaning of the Certified Standing Orders (CSO). He demonstrates from the order, there is entry therein of ‘absence without permission and without satisfactory cause’ under misconduct and punishment for misconduct, to include ‘discharge’. As such, the termination was duly issued. He seeks interference. 4. Mr. Kanungo, learned advocate appearing on behalf of opposite party cites judgment of the Supreme Court in Mavji C. Lakum v. Central Bank of India, reported in (2008) 12 SCC 726, paragraphs 3, 4 and 22. He submits, the Supreme Court declared the law in confirming power of the Tribunal to exercise discretion under section 11-A. Mr. Mohanty in reply draws attention to paragraph 5 in the judgment to point out, the Supreme Court noticed that the Tribunal had come to conclusion that there was no evidence supporting major charges though there was some W.P.(C) No.16091 of 2024 Page 3 of 7 misconduct on the part of the appellant. In the circumstances, the discretion exercised by the Tribunal in that case was sustained by the Supreme Court. In this case, the Tribunal found the misconduct to be admitted. The CSO provides for the punishment imposed, of discharge. On the misconduct proved there was no scope for the Tribunal to exercise discretion. 5. He further cites judgment dated 24th September, 2013 made by the Supreme Court in Civil Appeal no.8487 of 2013 (Davalsab Husainsab Mulla v. North West Karnataka Road Transport Corporation), reported in (2013) 10 SCC 185. He relies on paragraphs 8 to 11 in the judgment print to submit, said Court interpreted section 11-A to say, before exercising the discretion, the Labour Court has to necessarily reach finding that the order of discharge or dismissal was not justified. In this case there is no finding but simply exercise of discretion in favour of the workman. 6. He then relies on another judgment of the Supreme Court in Delhi Transport Corporation v. Sardar Singh, reported in (2004) 7 SCC 574, paragraph 7 to 14. Mr. Kanungo also relies on this judgment as the Supreme Court discussed ‘absence’ as in W.P.(C) No.16091 of 2024 Page 4 of 7 respect of paragraph 19 (h) of the Standing Orders in that case, to be of habitual absence. He submits, Delhi Transport Corporation (supra) comes to aid of his client’s case and Davalsab Husainsab Mulla (supra) cannot be relied upon as the Tribunal exercised its discretion, judiciously. He submits, the writ petition be dismissed. 7. Paragraph-39 from impugned award is reproduced below. “In the instant case it is an admitted fact that the 2nd party workman had applied for leave for six months from 27.5.2010 to 28.11.2010 and the same was regretted by the Management, but he remained absent unauthorizedly during that period. Moreover, he also absented from duty after the month of November, 2010 so he was only unauthorizedly absent from duty. Moreover, there is nothing in the service record of the 2nd Party-workman of the above regarding any of his past misconduct.” (emphasis supplied) It is clear the Tribunal found unauthorized absence for six months as also after month of November, 2010. This under the certified standing orders amount to misconduct attracting, inter alia, punishment of discharge, awarded to opposite party-workman. W.P.(C) No.16091 of 2024 Page 5 of 7 8. In Mavji C. Lakum (supra) the Supreme Court analysed judgment of the Tribunal passed on restoration of the reference, view taken by the learned single Judge, appeal dismissal by the Division Bench in the High Court to say that the learned single Judge had laid emphasis on the Tribunal having found that the enquiry held was just and proper. Such a finding does not prevent the Tribunal to further probe to see whether findings on fact regarding misconduct stood proved. The finding of proper enquiry does not militate against another finding of the Tribunal that the charge was not proved. Mr. Mohanty is correct in pointing out that the Tribunal found the charges were not proved and hence, had the power to exercise discretion under section 11-A as in that case.
Decision
9. For purpose of adjudication of the writ petition we need not comment on declaration of law made regarding exercise of discretion by the Tribunal under section 11-A as interpreted in Davalsab Husainsab Mulla (supra). So also Delhi Transport Corporation (supra) because the SO in that case is distinguishable from the CSO in this case. W.P.(C) No.16091 of 2024 Page 6 of 7 10. Finding of the Tribunal was that the charge of misconduct stood admitted is a finding of proof of it. The charge attracts the punishment of discharge, imposed on opposite party (workman). Where the finding was found to be proved by the Tribunal, there was no scope for exercise of discretion under section 11-A. This is because the provision requires satisfaction obtained by the Tribunal that the order of discharge and dismissal was not justifiable. 11. Impugned order of the Tribunal is set aside and quashed. The writ petition is allowed and disposed of. (Arindam Sinha) Judge Jyoti (M.S. Sahoo) Judge Signature Not Verified Digitally Signed Signed by: JYOTIPRAVA BHOL Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 13-Jan-2025 10:53:14 W.P.(C) No.16091 of 2024 Page 7 of 7