Mahipal v. State of Haryana and Ors

HARSH BUNGER, J.

1.

Petitioner [Mahipal (since deceased)] (here-in-after referred to as `the workman') had filed the instant writ petition, seeking a writ in the nature of certiorari for setting aside the Award dated 15.05.2009 (Annexure P-6) passed by the learned Industrial Tribunal-cum-Labour Court-III, Faridabad (here-in-after referred to as `the Tribunal'); whereby the reference of industrial dispute raised by the petitioner regarding termination of his services; has been answered against him.

Further prayer was made for quashing of the Enquiry Report dated 27.03.1996 (Annexure P-3) as well as order dated 14.02.1997 (Annexure P-4) passed by the Director, Higher Education (respondent No.2); whereby he agreed with the proposal of the Management of respondent No.3-College for termination of services of the workman.

Another prayer was made for quashing of letter dated Page 2/14

26.02.1997 (Annexure P-5); whereby services of workman were terminated, along with prayer for directing respondent No.3-College to reinstate the workman into service and to grant other consequential benefits.

2.

Briefly, the workman raised an industrial dispute regarding termination of his services, which was referred for adjudication to the Tribunal below. As per the claim statement, the workman claimed that he was working with respondent No.3-College as a Sweeper since 29.08.1985 and his service record had remained satisfactory. The workman claimed that he became a member of the Union and on account thereof, respondent No.3-College was finding opportunity to suspend him. The workman stated that on 27.03.1996, a charge-sheet was served upon him on the basis of false charges, which was replied by him and without considering the said reply, a domestic enquiry was initiated against him. Sh. O.P. Ahuja, Advocate was appointed as an Enquiry Officer to which he raised his objection; however, the said objection was rejected by the Management and he was compelled to join the enquiry proceedings. The workman claimed that the enquiry was not conducted in a legal manner by the Enquiry Officer and he twisted the proceedings as per his own wish. A Show Cause Notice dated 13.06.1996 was served upon the workman, to which, he submitted his reply on 16.06.1996; however without considering the same, respondent No.3-College sought approval from the Director, Higher Education, Haryana vide its letter dated 21.06.1996 for termination of his services, which was accorded by the Director and thereafter, the services of workman were terminated on 14.06.1997 by the Management of the respondent-College. Workman claimed that before terminating his services, Page 3/14

the provisions of the Industrial Disputes Act had not been complied with; accordingly, he prayed for re-instatement in service along with continuity thereof and back wages.

3.

The afore-said claim of the workman was contested by respondent No.3-College; wherein it was stated that the workman was appointed as a Sweeper on temporary basis on 01.09.1985; however, his conduct was not satisfactory. It was the stand of the respondent-College that the workman had been given warnings and had been charge-sheeted many times for committing misconduct and ultimately, a charge sheet dated 27.03.1996 had been issued upon him and thereafter, Sh. O.P. Ahuja, Advocate was appointed as an Enquiry Officer and the workman had fully participated in the enquiry proceedings and he was given full opportunity to cross-examine the witnesses by the Management and also to produce his defence. A Show Cause Notice along with a copy of the enquiry report was served upon the workman and after following due process and procedure, services of the workman were legally terminated on 26.02.1997. The other allegations levelled by the workman were denied and prayer was made for dismissal of the claim petition.

4.

A re-joinder was filed by the workman to the written statement filed by the Management.

5.

On the basis of the pleadings of the parties, the following issues were framed :- "1. Whether the domestic enquiry resulting into the termination of services of the claimant is legal, fair and proper ?

¶2As per reference.

3.

6.o o Ino ordero too proveo hiso case/claim,o theo workmano examinedo himselfoasoWW1oandoreliedouponotheofollowingodocumentaryoevidenceo:-o Sr.o Exhibit/so Documento No.o 1o MX1o Replyotoochargeosheet.o 2o W1otoo Copieso ofo lettero writteno byo theo W10o petitioner/workmano too theo enquiryo officeroasowelloasorespondentoduringo enquiryoproceedings.o 3o W11oandooo Postaloreceipt.o W12o 4o W13otoo Acknowledgmentodues.o W15o o o oo

7.o o Ono theo othero hand,o respondento No.3-Collegeo haso examinedooooooooooooooo Sh.oO.P.oAhuja,oEnquiryoOfficeroasoMW1oandohasoalsooadducedofollowingoo documentaryoevidenceo:-o Sr.oNo.o Exhibit/so Documento 1o M1o Copyoofoletterodatedo29.03.1996ovideo whicho heo hado beeno appointedo aso enquiryoofficer.o 2o M2o Copyo ofo chargeo sheeto datedo

27.03.1996.o 3o M3o Copieso ofo enquiryo proceedingso containingo20opages.o 4o M4o Copyoofoenquiryoreport.o o

8.o o ItoappearsothatoIssueoNo.1owasotreatedoasoaopreliminaryoissueo andotheosameocameotoobeodecidedobyotheolearnedoTribunalobelowovideoitso orderodatedo07.11.2008obyoholdingothatotheoenquiryoconductedoagainstotheo workmanowasofairoandoproper.oo

9.o o Thereafter,otheoTribunalobelow,ovideoimpugnedoAwardodatedo

15.05.2009o(AnnexureoP-6)oansweredotheoreferenceoagainstotheoworkman.o

10.o o Inotheoafore-mentionedocircumstances,otheoworkmanohasofiledo theoinstantowritopetitionobeforeothisoCourt.oItoappearsothatoduringopendencyo Page 4/14 Page 5/14

of these proceedings, the workman expired on 26.07.2015 and his legal representatives were brought on record.

11.

Learned counsel for the petitioner (workman through his LRs) submits that the learned Tribunal below has erred in law and facts in rejecting the claim. It is submitted that the learned Tribunal below has wrongly held that the domestic enquiry was just, fair and proper. It is submitted that the Enquiry Officer-Sh. O.P. Ahuja, was the legal representative of respondent No.3-College and in that regard, the workman raised an objection; however, his objection was rejected and the workman was compelled to participate in the enquiry proceedings; therefore, the enquiry proceedings were biased. Learned counsel further submits that the workman was not provided adequate opportunity to defend his case; therefore, the enquiry report was per se bad and is also not based on the evidence available on the record. Learned counsel next submits that the primary charge against the workman was that he did not drain out the rain water collected on the roof of the Geography Department on 16.01.1996 and therefore, disobeyed the lawful orders issued by the superiors. In this regard, it is contended by learned counsel for the petitioner that the response of the workman to the afore-said charge has not been considered by the Enquiry Officer; wherein he had stated that since the water was leaking from the naked wires and he apprehended electric current therein and on account of that reason, he did not drain out the water from the ceiling. It was submitted that the termination of services of the workman was nothing but an act motivated by vendetta by respondent No.3-College as the workman had become a Member of the Employees' Union. It is Page 6/14

submitted that even otherwise, the punishment awarded to the workman is disproportionate to the charge of misconduct against him.

With the afore-said submissions, learned counsel for the petitioner has submitted that the impugned order/letter/Award be set aside and necessary relief be granted.

12.

Per contra, learned counsel appearing for respondent No.3-College opposed the prayer made on behalf of the petitioner by submitting that the Tribunal below has considered the evidence/material available on the record and has passed a well-reasoned and justified award. It is submitted that the enquiry proceedings have been conducted after following the principles of natural justice and affording due opportunity of hearing to the workman and the workman had duly participated in the enquiry proceedings. It is submitted that the learned Tribunal below has also returned a finding that the enquiry proceedings were fair and proper. Therefore, it is contended that once there is no illegality or perversity in the enquiry proceedings, then the awarding of punishment falls within the domain of the Management and no interference is required to be made in the same. It is submitted that the workman had committed the acts of insubordination and considering the totality of circumstances, the workman was rightly awarded the punishment of dismissal from service. Accordingly, the prayer for dismissal of the writ petition has been made.

13.

I have heard learned counsel for the respective parties and perused the paper-book with their able assistance.

14.

Contours of the scope of interference by High Court in disciplinary proceedings are well settled. In Union of India v. P. Gunasekaran, 2015(1) S.C.T. 5, Hon'ble Supreme Court held as Page 7/14

under:- "13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether : a) the enquiry is held by a competent authority; b) the enquiry is held according to the procedure prescribed in that behalf; c) there is violation of the principles of natural justice in conducting the proceedings; d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that reasonable person could ever have arrived at such conclusion; g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i) the finding of fact is based on no evidence.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience. xxx xxx xxx

¶18The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re-appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.

¶19Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court…"

¶15After considering the material/evidence available on the record, the learned Tribunal below vide impugned Award dated 15.05.2009 (Annexure P-6), answered the reference against the workman by holding as under :- 1$.o &o per salo ofo recor!o re)ealso thato too pro)eo theo chargesole)elle!oagainstotheoclaimant+otheorespon!ento ha!o e,amine!o beforeo theo enq iryo officero MW-oooooooooooo .hrio&nan!o.ingh+o#rincipaloofotheorespon!entoschoolo whoo !epose!o thato ono "1./.1''%+o theo 0ea!o clerkooooooooooooooo .hrio&shokoManglaoha!oaske!otheoclaimantotoo!rainoo to theowaterofromoroomo1o.o(ob totheoclaimanto!i!onoto listenotoohimoan!o ltimatelyoheoha!obeenogi)enoor!eroino writingotoo!rainoo totheowateroan!oonlyothenoheo!raine!o ito o t.o 2heno ono 1(.1.1''(+o .hrio &shoko Manglao ha!o aske!o himo too !raino o to theo sameo watero whicho ha!o Page 8/14 collectedoonotheoroomoofogeographyodepartmentodueotoo fallingo ofo raino buto theo claimanto dido noto draino ito outo sayingo thato heo dido noto haveo theo bambooo broom.o Ono

17.1.1996,oalsooheowasocalledouponotoodrainooutotheo watero buto heo straighto awayo refusedo too draino outo theo watero byo takingo ao pleao thato heo couldo geto electrico current.oThisowitnessoproducedoonorecordoEx.oMIocopyo ofocomplaintoandofurtherostatedothatoinoMarcho1992,otheo claimanto hado committedo sucho acto ando hado askedo foro forgivingohimobyosubmittingoEx.oM3.oThisowitnessowaso cross-examinedoatolengthobyotheoworkmanohimself.oTheo managemento hado theno examinedo MW2o Shrio Ashoko Mangla,oheadoclerkowhoocorroboratedotheoversionoofo MWIobeforeotheoenquiryoofficeroandoheotooowasoalsoo crossoexaminedobyotheoworkman.oTheorespondentohado thenoexaminedoMW3oShrioHansoRaj,oSweeperobeforeotheo enquiryoofficerowhoodeposedothatoheohadodrainedoouto theowaterofromotheoroomoofogeographyodepartmentoono

16.1.1996.oTheochargesolevelledoagainstotheoworkmano hadobeenoprovedoduringotheoenquiry.oAsoperotheoreporto ofo enquiryo officer,o theo chargeso levelledo againsto theo claimanto thato heo hado refusedo too draino outo theo watero collectedo ono theo roofo ofo geographyo departmento ono

17.1.1996oandohadogivenolameoexcusesoasowelloasotheo chargesothatoheohadorefusedotoodrainooutotheowateroono

31.8.1995ohadobeenofullyoproved.oInoviewoofotheoreporto ofotheofindingoofficer,otheocaseoofoactoofoinsubordinationo byotheoworkmanoareoproved.oNoodoubt,otheocourtohaso discretionaryopowerounderosectiono11-Aoonotheopointoofo quantumo ofo punishmento ando ifo ito iso establishedo thato quantumo ofo punishmento awardedo too theo workmano iso disproportionateo too theo provedo misconducto theno thiso courtoisocompetentotoosetoasideotheopunishment.oItoisotoo beoappreciatedoasotoowhetherotheopunishmentoawardedo byotheomanagementoisoproportionateowithotheoprovedo Page 9/14 misconductooronot.oInoJarnailoSingh'socaseo(supra),oito wasoheldobyoouroownoHon'bleoHighoCourtothatolabouro courtowillonotoexerciseoitsopowerounderosectiono11-Aoofo theoActomodifyingotheodismissalowhenotheomisconducto againstotheoclaimantohasobeenoprovedoinotheoenquiry.oIno T.oSundara'socaseo(supra)oitowasoheldothatotheorightoofo theomanagementoimposingopunishmentoisoinherentowitho employeroandotheoindustrialolawoonlyocallsouponohimotoo justifyotheosame.oItowasoheldothatobyomeansoofosectiono 11-A,o theo Tribunalo iso giveno powero too examineo theo proprietyo ofo it.o Ino Generalo Secretary,o Southo Indiao Cashewo Factorieso Workers'o Uniono versuso theo Managingo Direcotr,o Kerlao Stateo Cooperativeo Developmento Corporationo Limitedo ando otherso 2000o LLRo657,oitowasoheldothatoifotheoenquiryoisofairoando proper,o theno ino theo absenceo ofo anyo allegationo ofo victimizationooroanyounfairolabouropractice,otheolabouro courtohasonoorightotoointerfereowithotheopunishment.oIno ChairmanoandoManagingoDirector,oBharatoPetroleumo CorporationoLimited'socaseo(supra)oitooowasooheldooothatoo imposingoofopunishmentoonoanoemployeeoisotheofunctiono ofotheoemployeroandointerferenceowithotheoquantumoofo punishmento shouldo noto beo openo aso ao mattero ofo righto unlesso thereo areo justifiableo ando supportingo reasonso therefor.oInoMahendraoandoMahendra'socaseo(supra)oito wasoheldothatolabourocourtocannotobyowayoofosympathyo aloneoexerciseotheopoweroandoreduceotheopunishmentoaso imposedo byo ano employero upono ao workman.oooooooooooooooooooooooo Ino Managingo Director,o Balasahebo Desaio Sahakarioooooooooooooo S.K.o Limited'so caseo (supra)o ito waso heldo thato labouro courtoordinarilyoshouldonotointerfereowithotheodiscretiono exercisedobyotheoemployerounlessotheosameoisofoundotoo beo inconsistento witho theo provisionso ofo ao statuteo oro otherwiseoperverseoorounjust.o Page 10/14

15.oApplyingotheoratiooofolawoasolaidodownoinotheoaboveo citedoauthoritiesotootheofactsoandocircumstancesoofotheo presentocase,oitoisoprovedofromotheoevidenceoplacedoono recordoasowelloasofromotheoreportoofoenquiryoofficerothato theo workmano hado committedo theo actso ofo insubordination.o Ino Managemento ofo Asiao Tobaccoo CompanyoLimited'socaseo(supra)opunishmentohadobeeno modifiedo aso thereo waso noo previouso recordo ofo misconducto againsto theo workmano ando becauseo theo managementohadofailedotooissueoaonoticeotoohimoonotheo proposedopunishment.oHoweveroinotheopresentocase,otheo noticeoofoproposedopunishmentohadobeenoissuedoupono theoworkmanoandohenceotheoaboveocitedoauthorityoisonoto applicableotootheofactsoandocircumstancesoofotheopresento caseoandoisodistinguishable.oInoPunjaboAgrooIndustrieso Corporationo Limited'so caseo (supra)o theo acto ofo insubordinationo waso noto foundo too beo maliciouso ando willfulo ando thereforeo punishmento ofo dismissalo waso substitutedo witho reinstatemento alongwitho 50%o backo wages.ooHowever,ooinoothisoocaseooitooisonotoprovedobyotheoo workmanoothatoohisooactoowasoonotoomaliciousoandowillful.oo Thereforeo thiso authorityo iso alsoo distinguishable.o Ino Management,o Aurofoodo Privateo Limited'so caseo (supra)oitowasoobservedothatotheoallegationsowereotrivialo ando couldo noto justifyo ano ordero ofo dismissalo fromo service.o Theno insteado ofo reinstatement,o compensationo wasoawarded.oInoRoopoSinghoNegi'socaseo(supra)otheo workmano hado beeno dismissedo fromo serviceo foro misconductoofocommittingotheftoandoembezzlement.oHeo wasodischargedoinocriminalocase.oTheoinferencesodrawno byo disciplinaryo enquiryo wereo noto supportedo byo anyo evidenceoandothereforeoorderoofodismissalofromoserviceo wasonotoheldotoobeosustainable.oHowever,oinotheopresento case,otheoactoofoinsubordinationobyotheoworkmanohaso beenofullyoproved.oTheoenquiryoconductedoagainstotheo Page 11/14 workmanowasofairoan!oproper.o-toisonotopro)e!othatotheo respon!entocommitte!oanyoactoofo)ictimi8ationooroanyo nfairolabo ropracticeothereforeothisoco rtohasonoorighto too interfereo witho theo p nishmento an!o witho theseo obser)ationso -o ha)eo noo hesitationo too reacho too theo concl sionothatothisoco rtocannotointerfereoonotheopointo ofo p nishmento awar!e!o too theo !elinq ento byo theo employerotheosameobeingoproportionateotootheopro)e!o miscon! cto ofo theo claimanto an!o hiso !ismissalo fromo ser)iceoisoaoproperop nishmentoan!onotoonoe,cessi)eo si!e.o 2heo p nishmento awar!e!o too himo waso noto !isproportionateotootheomiscon! ctocommitte!obyohim.o 0enceoheoisonotohel!oentitle!otooanyorelief.oWithotheseo obser)ations+othisoiss eoiso!eci!e!oagainstotheoworkmano an!oinofa)o rooforespon!ent.@o A perusal of above extracted findings would show that the act of insubordination by the workman was proved on record and the enquiry conducted against workman was held to be fair and proper and workman failed to show that respondent-Management had committed any act of victimization or any unfair Labour practice.

¶16When the case in hand is considered on the anvil of legal position indicated above, no fault can be found with the findings returned by the Tribunal below.

¶17Furthermore, the parameters for exercise of jurisdiction by the High Court under Article 226 of the Constitution of India in cases involving challenge to the award passed by the Labour Court/Industrial Tribunal and orders passed by other judicial and quasi-judicial bodies are well defined. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal acts Page 12/14 Page 13/14

illegally or improperly i.e. it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted by it is opposed to the principles of natural justice. However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and not appellate one. This necessarily means that the finding of fact reached by the inferior Court or Tribunal, as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record. This is the abstract statement of law, but the vexed question is as to what is an error of law apparent on the face of the record and in what circumstances a finding of fact recorded by an inferior Court or Tribunal or a quasi-judicial authority can be corrected. Broadly speaking, an error of law is one which can be discovered on a bare reading of the judgment, order or award under challenge along with the documents which have been relied upon by the inferior Court, Tribunal or quasi-judicial authority. An error, the discovery of which is possible only after a detailed scrutiny of the evidence produced by the parties and lengthy debate at the bar cannot be regarded as an error of law for the purpose of a writ of certiorari. A finding of fact recorded by an inferior Court or Tribunal can be corrected only if it is shown that in recording the said finding the Court or the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence and the same has influenced the impugned finding. Similarly, a finding of fact based on no evidence would be regarded as an error of law which can be corrected by a writ of certiorari. However, sufficiency or adequacy of the evidence relied upon by the inferior Court or Page 14/14

Tribunal or the quasi-judicial authority cannot be gone into by the High Court while considering the prayer for issue of a writ of certiorari. Likewise, the mere, possibility of forming a different opinion on re-appreciation of evidence by the parties is not sufficient for issue of a writ of certiorari Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 Supreme Court 477; Shaikh Mahammad Umarsaheb v. Kadalaskar Hasham Karimsab and others, AIR 1970 Supreme Court 61; Jitendra Singh Rathor v. Sh. Baidyanath Ayurved Bhawan Ltd. and another, AIR 1984 Supreme Court 976; R.S. Saini v. State of Punjab and others, 1999(4) RCR (Civil) 253 (SC) : J.T. 1999(6) S.C. 507 and Mohd. Shahnawaz Akhtar and another v. Ist A.D.J. Varanasi and others, J.T. 2002(8) S.C. 69.

18.

No other point has been urged.

19.

Considering the totality of circumstances in the light of legal principles stated above, there is no scope for any interference in the impugned Award dated 15.05.2009 (Annexure P-6) passed by learned Presiding Officer, Industrial Tribunal-cum-Labour Court-III, Faridabad; resultantly the instant writ petition fails and the same is accordingly dismissed.

20.

All pending application/s, if any, shall also stand closed.

October 5th, 2023

(HARSH BUNGER) gurpreet

JUDGE

Page 1/14 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP-25500-2014 (O&M) Date of decision : 05.10.2023 MAHIPAL (SINCE DECEASED) THROUGH HIS LRS. …Petitioners Versus STATE OF HARYANA AND OTHERS …Respondents CORAM: HON'BLE MR. JUSTICE HARSH BUNGER Present : Mr. Parminder Singh, Advocate Legal Aid Counsel for the petitioner. Mr. Praveen Chander Goyal, Addl. A.G., Haryana. Mr. David Sardana, Advocate for respondent No.3.