Supreme Court of India
RAGHUBIR SINGHversusGENERAL MANAGER, HARYANA ROADWAYS, HISSAR
- Citation
- 2014 INSC 592
- Decided
- 3 September 2014
- Disposal
- Appeal(s) allowed
- Bench
- S MUKHOPADHAYA
Holding
The Supreme Court set aside the award of the Labour Court and the High Court judgment, held the termination illegal, and ordered reinstatement with back wages, finding the reference to the Labour Court valid and the Labour Court’s refusal to adjudicate on merits a miscarriage of justice.
Summary
Raghuvir Singh, a conductor with Haryana Roadways, was arrested in 1994 on a criminal charge of ticket‑money misappropriation and was terminated from service without a proper enquiry or show‑cause notice. After being acquitted in 2002, he sought reinstatement; the dispute was referred by the State Government to the Labour Court under s.10(1)(c) of the Industrial Disputes Act. The Labour Court initially held the termination illegal, but later dismissed the reference as time‑barred; the High Court upheld that award. The Supreme Court held that the reference was valid despite the delay, that the termination violated natural‑justice principles and Article 311(2)(b), and that the Labour Court erred by refusing to adjudicate the merits under s.11A. Consequently, the Court set aside the Labour Court award and the High Court judgment, ordered the appellant’s reinstatement with back wages and consequential benefits, and dismissed the employer’s reliance on procedural shortcuts.
Issues considered
- The validity of the State Government's reference of the industrial dispute to the Labour Court despite alleged delay and laches.
- Whether the termination order passed without an enquiry or show‑cause notice violates principles of natural justice and Article 311(2)(b) of the Constitution.
- Whether disciplinary proceedings under the Haryana Civil Services (Punishment and Appeal) Rules, 1987 are applicable to a workman governed by the Industrial Employment (Standing Orders) Act, 1946.
- Whether Section 11A of the Industrial Disputes Act obliges the Labour Court to adjudicate the dispute on its merits and not dismiss it on limitation grounds.
- The applicability of the doctrine of proportionality to the employer’s disciplinary action.
- The entitlement of the workman to reinstatement, back wages and other consequential benefits.
Legislation cited
- Constitution of Indias. 14, s. 16, s. 19, s. 21, s. 311(2)(b)
- Haryana Civil Services (Punishment and Appeal) Rules, 1987
- Industrial Disputes Act, 1947s. 10(1), s. 11A
- Industrial Employment (Standing Orders) Act, 1946
- Limitation Act, 1963
Subjects
industrial disputetermination of servicenatural justicedoctrine of proportionalitySection 11Aback wagesreinstatementlimitationArticle 311standing orders
Judgment
[2014] 8 S.C.R. 1100
A RAGHUBIR SINGH
v.
GENERAL MANAGER, HARYANA ROADWAYS, HISSAR
(Civil Appeal No. 8434 of 2014)
SEPTEMBER 3, 2014
B
[SUDHANSU JYOTI MUKHOPADHAYA AND
V. GOPALA GOWDA, JJ.]
Industrial Disputes Act, 1947:
c
s. 10(1 ), 11 A - Termination of service - Misappropriation
of ticket amount by conductor-workman - Order of termination
- Criminal case resulting in acquittal - Subsequently,
employee reporting to join for duty but informed that his
services were terminated - Industrial dispute before
0
Conciliation Officer but the same failed - Reference of dispute
to labour court by State Government, as regards termination
order - Labour court passing award against employee that
reference of industrial dispute as time barred - In writ petition,
E award not interfered with by the High Court- On appeal, held:
Even assuming that there was delay and /aches on the part
of the workman in raising the industrial dispute and getting
the same'"referenced for adjudication, rejection of the
reference by the labour court by answering the additional
issue regarding the delay /aches and limitation without
F adjudicating the points of dispute referred to it on the merits,
amounts to failure to exercise its statutory power uls. 11 A - .
Furthermore, workman continuously remained absent from
his duties, however, termination order was passed without
conducting an enquiry as required in law - Also no show
G cause notice issued to the workman - Conductor being a
workman as defined uls. 2(s) is an employee of the respondent
authorities and was governed by the Industrial Employment
(Standing Orders) Act, 1946 but the disciplinary proceedings
were initiated u/r. 7 of the Haryana Civil Services (Punishment
H 1100
RAGHUBIR SINGH v. GENERAL MANAGER, 1101
HARYANA ROADWAYS, HISSAR
and Appeal) Rules, 1987 - Thus, the principles of natural A
justice were not followed - Out of the period of unauthorised
absence of around five months, conductor was under judicial
custody for two months due to the criminal case filed against
him at the instance of the respondent - In view thereof and
facts of the case, the unauthorised absence period treated as B
leave without wages - Order of termination passed by the
employer, the award passed by the labour court and the
judgment of the High Court set aside - Employee to be
reinstated, with back wages and other consequential benefits
- Constitution of India, 1950 - Art. 311(2)(b). c
s. 10(1) - Power under - Reference of industrial dispute
by the State Government to the labour court for adjudication
- Held: As per s. 10(1), the appropriate government 'at any
time' may refer an industrial dispute for adjudication, if it is of
the opinion that such an industrial dispute between the D
workman and the employer exists or is apprehended - On
facts, no doubt there was a delay in raising the dispute by the
conductor; the labour court nevertheless has the power to
mould the relief accordingly·- Reference of the industrial
dispute by the State Government to the labour court to E
adjudicate the existing industrial dispute between the parties
was made within a reasonable time, considering the
circumstances in which the workman was placed.
Doctrines/Principles - 'Doctrine of Proportionality' - F
Principle of - Held: Is to ensure that the action of the employer
against employees/workmen does not impinge their
fundamental and statutory rights - The Doctrine is to be
followed by the employer/employers at the time of taking
disciplinary action against their employees/workmen to satisfy G
the principles of natural justice and safeguard the rights of
employees/workmen - On facts, doctrine to be applie.:J to the
facts of the case - Order of termination disproportionate to the
gravity of misconduct, thus, employee entitled to
reinstatement, back wages and other benefits.
H
1102 SUPREME COURT REPORTS [2014) 8 S.C.R.
A The appellant-conductor was arrested for
misappropriating the amount collected from tickets. A
criminal case was registered and the appellant was
arrested. Thereafter, services of the appellant were
terminated. The appellant then was released on bail with
B an oral assurance that he would be reinstated after his
acquittal by the court. Thereafter, the appellant was
acquitted but when he reported to join his duty, he was
informed that his services were terminated. The appellant
then served a demand notice upon the respondent but
c the same was not acceded to. The appellant raised an
industrial dispute before the Conciliation Officer and the
same failed. The State Government in exercise of power
u/s. 10(1)(c) of the Industrial Disputes Act, 1947, referred
the dispute to the Labour Court, as regards termination
of the appellant from services. The Labour Court holding
0
that the termination of the appellant from service was
illegal, passed an award of re-instatement with back
wages. The High Court set aside the award and
remanded back the case for fresh adjudication. The
Labour Court passed an award against the appellant on
E the ground that the reference of the industrial dispute
was time barred. The appellant filed a writ petition
challenging the award. The High Court dismissed the
same. The appellant then filed Letters Patent Appeal. The
Division Bench dismissed the same on the ground that
F the services of the appellant were terminated by the
respondent in the year 1994 in exercise of the power
conferred upon it u/ Art. 311 (2)(b) of the Constitution
whereas the appellant raised the dispute via demand
notice in the year 2002. Hence the instant appeal.
G
Allowing the appeal, the Court
HELD: 1. The dispute was raised by the workman
after he was acquitted in the criminal case which was
initiated at the instance of the respondent. Raising the
H
RAGHUBIR SINGH v. GENERAL MANAGER, 1103
HARYANA ROADWAYS, HISSAR
industrial dispute belatedly and getting the same referred A
from the State Government to the Labour Court is for
justifiable reason. Even assuming that there was a certain
delay and laches on the part of the workman in raising
the industrial dispute and getting the same referenced for
adjudication, the Labour·Court is statutorily duty bound B
to answer the points of dispute referred to it by
adjudicating the same on merits of the case and it ought
to have moulded the relief appropriately in favour of the
workman. That has not been done at all by the Labour
Court. Both the Single Judge as well as the Division c
Bench of the High Court in its Writ Petition and the Letters
Patent Appeal have failed to consider this important
aspect of the matter. The award of the Labour Court and
the judgment and order of the High Court are highly
erroneous in law. Therefore, the same is interfered with
0
by this Court in exercise of the appellate jurisdiction as
there is miscarriage of justice for the workman. Therefore,
the order of termination passed by the respondent, the
award passed by the Labour Court and the judgment and
order of the High Court are liable to be set aside. The
workman must be reinstated. However, due to delay in E
raising the industrial dispute, and getting it referred to the
Labour Court from the State Government, the workman
would be entitled in law for back wages and other
consequential benefits from the date of raising the
industrial dispute till reinstatement with all consequential F
benefits. [Para 41, 42] [1139-F; 1140-A-E]
2.1. According to Section 10(1) of the Industrial
Disputes Act, 1947, the appropriate government 'at any G
time' may refer an industrial dispute for adjudication, if it
is. of the opinion that such an industrial dispute between
the workman and the employer exists or is apprehended.
In the instant case, no doubt there was a delay in raising
the dispute by the appellant; the Labour Court H
1104 SUPREME COURT REPORTS [2014] 8 S.C.R.
A nevertheless has the power to mould the relief
accordingly. At the time of adjudication, if the dispute
referred to the Labour Court is not adjudicated by it, it
does not mean that the dispute ceases to exist. The
appropriate government in exercise of its statutory power
B under Section 10(1)(c) of the Act can refer the industrial
dispute, between the parties, at any time, to either the
jurisdictional Labour Court/Industrial Tribunal. Therefore,
the State Government rightly exercised its power under
Section 10(1 )(c) of the Act and referred the points of
c dispute to the Labour Court. [Para 11, 13] (1115-B, C;
1117-G-H; 1118-A-B]
2.2. In view of the legal principles laid down by this
Court in S.M. Nilajkar & Ors.case that the workman cannot
be denied to seek relief only on the ground of delay in
D raising the dispute, the reference of the industrial dispute
by the State Government to the Labour Court to
adjudicate the existing industrial dispute between the
parties was made within a reasonable time, considering
the circumstances in which the workman was placed,
E firstly, as there was a criminal case pending against him
and secondly, the respondent had assured the workman
that he would be reinstated after his acquittal from the
criminal case but the respondent did not adhere to its
assurance. Moreover, it is reasonable to adjudicate the
F industrial dispute in spite of the delay in raising and
referring the matter, since there is no mention of any loss
or unavailability of material evidence due to the delay.
Thus, the delay in raising the industrial dispute and
referring the same to the Labour Court for adjudication
G is not gravely erroneous and it does not debar the
workman from claiming rightful relief from his employer.
It cannot be said that there was a delay on the part of the
appellant in raising the dispute and getting it referred to
the Labour Court by the State Government. (Para 14, 16)
H (1118-G; 1119-A-C; 1120-E]
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1105
ROADWAYS, HISSAR
Avon Services Production Agencies (Pvt.) Ltd. v. A
Industrial Tribunal, Haryana & Ors. 1979 ( 2 ) SCR 45:
(1979) 1 SCC 1; S. M. Nilajkar & Ors. v. Telecom District
Manager, Karnataka 2003 ( 3 ) SCR 156 : (2003)4 SCC 27
- relied on.
B
Assistant Engineer, Rajasthan State Agriculture
Marketing Board, Sub-Division, Kota v. Mohan Lal 2013 (9)
SCR 91 : (2013) 14 SCC 543 - distinguished.
Sapan Kumar Pandit v. UP. State Electricity Board &
Ors. 2001 ( 3 ) SCR 1081: (2001) 6 SCC 222; Ajaib Singh C
v. The Sirhind Co-Operative Marketing Cum-Processing
Service Society Limited & Anr. 1999 ( 2) SCR 505 : (1999)
6 sec 82 - referred to.
2.3. The Labour Court on an erroneous assumption o
of law framed the additional issue regarding the limitation
in raising the dispute and its reference by the State
Government to the Labour Court. The Labour Court
ignored the legal principles laid down by this Court. The
award passed by the Labour Court was accepted E
erroneously by both the Single Judge and the Division
Bench of the High Court by dismissing the Writ Petition
and the Letters Patent Appeal without examining the
case in its proper perspective, keeping in view the power
of the State Government under Section 10(1 )(c) and the
F
object and intendment of the Act. The rejection of the
reference by the Labour Court by answering the
additional issue no. 2 regarding the delay laches and
limitation without adjudicating the points of dispute
referred to it on the merits amounts to failure to exercise
its statutory power under Section 11A of the Act. Not G
adjudicating the existing industrial dispute on merits
between the parties referred to it may lead to disruption
of industrial peace and harmony, which is the foremost
important aspect in Industrial Jurisprudence as the same
H
1106 SUPREME COURT REPORTS (2014] 8 S.C.R.
A would affect the public interest at large. [Para 17, 31]
[1120-F-H; 1121-A; 1127-H; 1128-A]
2.4. From the reason mentioned in the termination
order, it is clear that the appellant continuously remained
8 absent from his duties for more than five months. Despite
the publication of the notice, the appellant neither joined
his duty nor did he submit his reply. Therefore, the
respondent straight away passed an order of termination
without conducting an enquiry as required in law against
the appellant to prove the alleged misconduct of
C unauthorised absence by placing reliance upon Article
311 (2)(b) of the Constitution of India. It is clear that no
enquiry was conducted by the appellant against the
workman to prove the alleged misconduct of
unauthorised absence from his duties. The reason.for
D dispensing with the enquiry is not at all forthcoming in the
order of termination which refers to the said constitutional
provision. [Para 20, 21] [1121-G-H; 1122-A-B]
2.5. The disciplinary proceedings initiated by the
E respondent under Rule 7 of the Haryana Civil Services
(Punishment and Appeal) Rules, 1987 are not only
untenable in law but also contrary to the legal principles
laid down by this Court. There is neither any tenable
explanation nor any material evidence produced by the
F respondent before the courts below to justify its adoption
of the said Rules for initiating the disciplinary
proceedings against the appellant-workman. In the
absence of plea and material documents produced by the
respondent, the proceedings initiated and passing of the
G order of termination is bad in law. The appellant being a
workman as defined under Section 2(s) of the Act is an
employee of the respondent therefore, he would be
governed by the Model Standing Orders framed under the
Industrial Employment (Standing Orders) Act, 1946 and
the principles of natural justice are required to -be
H followed by the respondent for initiating disciplinary
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1107
ROADWAYS, HISSAR
proceedings and taking disciplinary action against the A
workman. Since the respond,ents have not followed the
procedure laid down therein from the beginning till the
passing of the order of terminatibn, the same is vitiated
in law. [Para 22, 23, 24] [1122-E; 1123-8-F]
B
2.6. The respondent, both before the Labour Court
and the High Court erroneously placed reliance on the
order of termination passed against the workman without
producing any evidence on record to justify the alleged
misconduct of unauthorised absence of the appellant. C
Therefore, the points of dispute referred to the Labour
Court should have been answered affirmatively by it and
an award granting the reliefs as prayed by the appellant
should have been passed. This aspect of the matter was
not examined by the High Court either in the Writ Petition
or in the Letters Patent Appeal. [Para 23, 24] [1122-G-H; D
1123-A-B]
2.7. The Labou·r Court and the High Court erred in not
deciding the industrial dispute between the parties on the
basis of admitted facts, firstly, the enquiry not being E
conducted for the alleged misconduct of unauthorised
absence by the appellant from 02.04.1993 and secondly,
the en·quiry being dispensed with by invoking Article
311 (b)(2) of the Constitution of India without any valid
reason. Moreover, an order stating the impossibility of F
conducting the enquiry and dispensing with the same
was not issued to the appellant. The reasoning assigned
in the order of termination is bad in law. [Para 25] [1123-
G-H; 1124-A]
2.8. Before passing the order of dismissal for the act G
of alleged misconduct by the workman-appellant, the
respondent should have issued a show cause notice to
the appellant, calling upon him to show cause as to why
the order of dismissal should not be passed against him.
The appellant being an employee of the respondent was H
1108 SUPREME COURT REPORTS [2014] 8 S.C.R.
A dismissed without conducting an enquiry against him
and not ensuring complia'nce with the principles of
natural justice. The second show cause notice giving an
opportunity to show cause to the proposed punishment
before passing the order of termination was also not
s given to the appellant-workman by the respondent which
is mandatory in law. [Para 27] [1125-E-G]
Calcutta Dock Labour Board and Ors. v. Jaffar Imam and
Ors. 1965 SCR 453: AIR 1966 SC 282; Union of/ndia and
others v. Mohd. Ramzan Khan 1990 ( 3 ) Suppl. SCR 248
C : (1991)1 SCC.588; Managing Director, ECIL, Hyderabad, v.
Karunakar 1993 ( 2) Suppl. SCR 576: (1993) 4 SCC 727
- relied on.
2.9. The appellant was on unauthorised absence only
D due to the fact that he had genuine constraints which
prevented him from joining back his duties. The
unauthorised absence of the appellant which lead to his
termination was due to the fact that he was falsely
implicated in the criminal case filed at the instance of the
E respondent and that he must have had reasonable
apprehension of arrest and was later in judicial custody.
It is to be noted that out of the total period of the alleged
unauthorised absence, .the appellant was under judicial
custody for two months due to the criminal case filed
F against him at the instance of the respondent. Having
regard to the period of unauthorised absence and facts
and circumstances of the case, the unauthorised
absence period is treated as leave without wages. The
termination order is vitiated since it is disproportionate
G to the gravity of misconduct alleged against him. The
employment of the appellant-workman with the
respondent is the source of income for himself and his
family members' livelihood, thereby their liberty and
livelihood guaranteed under Article 21 of the Constitution
is denied. [Para 28, 29] [1126-A-C, E, F]
H
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1109
ROADWAYS, HISSAR
Olga Te//is & Ors. v. Bombay Municipal Corporation and A
Ors. 1985 (2) Suppl. SCR 51 :(1985) 3 SCC 545 - referred
to.
2.10. The appellant workman is a conductor in the
respondent-statutory body which is an undertaking
under the State Government of Haryana thus, it is a 8
potential employment. Therefore, his services could not
have been dispensed with by passing an order of
termination on the alleged ground of unauthorised
absence without considering the leave at his credit and
further examining whether he is entitled for either leave C
without wages or extraordinary leave. Therefore, the
order of termination passed is against the fundamental
rights guaranteed to the workman under Articles 14, 16,
19 and 21 of the Constitution of India and against the
statutory rights conferred upon him under the Act as well D
as against the law laid down by this Court. [Para 30) [1127-
D-G]
2.11. Once the reference is made by the State
Government in exercise of its statutory power to the
Labour Court for adjudication of the existing industrial E
dispute on the points of dispute, it is the mandatory
statutory duty of the Labour Court under Section 11A to
adjudicate the dispute on merits on the basis of evidence
produced on record. Section 11A was inserted to the Act
by the Parliament by the Amendment Act 45 of 1971 F
(w.e.f. 15.12.1972) with the avowed object to examine the
important aspect of proportionality of purjishment
imposed upon a workman if, the acts of misconduct
alleged against workman are proved. The object of
insertion of Section 11 A is traceable to the International G
Labour Organisation resolution. [Paras 33, 34) [1130-B-
D; 1131-F]
Workmen of Messrs Firestone Tyre & Rubber Company
of India v. Management & Ors. 1973 ( 3) SCR 587: 1973(1)
SCC 813 - referred to. H
1110 SUPREME COURT REPORTS [2014] 8 S.C.R.
A 2.12. The principle of 'Doctrine of Proportionality' is
a well recognised one to ensure that the action of the
employer against employees/workmen does not impinge
their fundamental and statutory rights. The doctrine has
to be followed by the employer/employers at the time of
B taking disciplinary action against their employees/
workmen to satisfy the principles of natural justice and
safeguard the rights of employees/workmen. The
"Doctrine should be applied to the fact situation as the
Court is of the firm view that the order of termination, even
C if the same is accepted is justified, it is disproportionate
to the gravity of misconduct. [Paras 35, 36] [1133-A-C]
Om Kumar and Ors. v. Union of India 2000 (4) Suppl.
SCR 693 :(2001) 2 SCC 386 - referred to.
0 2.13. The lives of the appellant and his family
members have been hampered. Further, on facts, the
order of termination passed is highly disproportionate to
the gravity of misconduct and therefore shocks the
conscience of this Court. Hence, the appellant is entitled
E for the reliefs as prayed by him in this appeal,
reinstatement, back wage and other consequential
benefits. [Para 39, 40] [1136-B; 1139-C-E]
Oeepali Gundu Surwase V. Kranti Junior Adhyapak
Mahavidyalaya (0. Ed) and Ors. 2013 (9) SCR 1 : (2013) 10
F SCC 324 - relied on.
Case Law Reference :
2013 (9) SCR 91 Distinguished Para 12
1979 (2) SCR- 45 Relied on Para 13
G 2001 (3) SCR 1081 Referred to Para 11
2003 (3) SCR 156 Relied on Para 14
1999 (2) SCR 505 Relied on Para 15, 16
1965 SCR 453 Relied on Para 26
H
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1111
ROADWAYS, HISSAR
1990 (3) Suppl. SCR 248 Relied on Para 27 A
1993 (2) Suppl. SCR 576 Relied on Para 27
1985 (2) Suppl. SCR 51 Referred to Para 29
1980 (2) SCR 773 Referred to Para 32
1973 (3) SCR 587 Referred to Para 33, 34 B
2000 (4) Suppl. SCR 693 Referred to Para 36, 37,
38
2013 (9) SCR 1 Relied on Para 39
CIVIL APPELLATE JURISDICTION : Civil Appeal No. c
8434 of 2014.
From the Judgment and Order dated 09.01.2012 of the
High Court of Punjab and Haryana at Chandigarh in Letters
Patents Appeal No. 20 of 2012.
D
Mohak Bhadana, Priya Puri for the Appellant.
Narender Hooda, Ankit Swarup, Kamal Mohan Gupta,
Chaitali Y. Dhinoja for the Respondent.
E
The Judgment of the Court was delivered by
V. GOPALA GOWDA, J. 1. Leave granted.
2. This appeal has been filed by the appellant against the
order dated 09.01.2012 passed by the High Court of Punjab F
and Haryana at Chandigarh in LP.A. No. 20 of 2012, whereby
the High Court dismissed the LP.A. and affirmed the order
dated 14.11.2011 passed by the learned Single Judge of the
High Court in the C.W.P. No.20996 of 2011, urging various
grounds. G
3. The necessary relevant facts are stated hereunder to
appreciate the case of the appellant and to ascertain whether
the appellant is entitled for the relief as prayed in this appeal.
In 1976, the appellant joined the Haryana Roadways as a H
1112 SUPREME COURT REPORTS [2014] 8 S.C.R.
A conductor. On 10.08.1993, the appellant was charged under
Section 409 of the Indian Penal Code in a criminal case at the
instance of the respondent for alleged misappropriation of the
amount collected from tickets and not depositing the cash in
relation to the same in time. The appellant was arrested by the
B Jurisdictional police and sent to judicial custody on 15.09.1994.
Further, on 21.10 .1994 the services of the appellant were
terminated by the General Manager, Haryana Roadways,
Hissar, the respondent herein. On 15.11.1994, the appellant
upon being released on bail was given an oral assurance by
c the respondent that he will be reinstated to the post after his
acquittal by the Court.
4. On 11.07.2002, upon being acquitted by the Court of
Judicial Magistrate, First Class, Hissar, in Crl. Case No. 33-1
of 1994, the appellant reported to join his duty, but he was
D informed by the respondent that his services stood terminated
w.e.f. 21.10.1994. The appellant served the demand notice
upon the respondent which was not acceded to and therefore,
the industrial dispute with regard to order of termination from
his services was raised before the conciliation officer. On failure
E of the conciliation proceedings before him, the industrial dispute
was referred by the State Government in exercise of its statutory
power under Section 10 (1) (c) of the Industrial Disputes Act,
194 7 (for short 'the Act') to the Labour Court, Hissar for
adjudication of the existing industrial dispute in relation to the
F order of dismissal of the appellant from his services. After
adjudication of the points of dispute referred to it, the Labour
Court vide its award dated 22.05.2009 declared that the
termination of the appellant from his services was illegal and
passed an award of reinstatement of the appellant with 60%
G back wages from the date of issuance of demand notice till
publication of the award and full back wages thereafter, till
reinstatement.
5. Aggrieved by the same, the respondent-Haryana
Roadways filed C.W.P. No. 13366 of 2009 before the Highj
H Court of Punjab and Haryana at Chandigarh. The High Court
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1113
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
vide its order dated 01.04.2010 set aside the award dated A
22.05.2009 and remanded the case back to the Labour Court
for fresh adjudication in the light of the applicability of the
provisions of Article 311 (2)(b) of the Constitution of India, to the
appellant/workman.
8
6. The Labour Court vide its award dated 17.05.2011 in
R.M. No.3 of 2010 answered the reference by passing an
award against the appellant on the ground that the reference
of the industrial dispute is time barred. The appellant challenged
the correctness of the said award by filing a Civil Writ Petition C
No.20996 of 2011 before the High Court, which was dismissed
on 14.11.2011 by the learned single Judge of the High Court
holding that the decision of the disciplinary authority of the
respondent is in the public interest and therefore, the same
does not warrant interference.
D
7. The appellant thereafter filed Letters Patent Appeal No.
20 of 2012 before the Division Bench of the High Court against
the order of the learned single Judge. The same was dismissed
vide order dated 09.01.2012 on the ground that the services
of the appellant were terminated by the respondent on E
21.10.1994 in exercise of the powers conferred upon it under
the provisions of Article 311 (2)(b) of the Constitution of India,
whereas the appellant had raised the industrial dispute vide the
demand notice in the year, 2002. The Division Bench of the
High Court found no illegality or irregularity in the impugned F
judgment passed by the learned single Judge of the High Court.
8. Aggrieved by the impugned judgment and order dated
09.01.2012 of the High Court of Punjab and Haryana, the
appellant has filed this appeal urging various grounds.
G
9. It has been contended by the learned counsel for the
appellants that the services of the appellant was illegally
terminated from his services on the ground of alleged
misconduct of unauthorised absence, and no enquiry was
conducted before the· termination of services of the appellant. H
1114 SUPREME COURT REPORTS [2014) 8 S.C.R.
A Further, it is contended that the reasons accorded by the
respondent are not justified for dispensing with the inquiry
procedure in relation to the allegations against the 'appellant
and invoking the provisions of Article 311 (2)(b) of the
Constitution of India and the respondent had terminated the
B services of the appellant without complying with the principles
of natural justice.
10. The learned Additional Advocate General for the State
of Haryana, Mr. Narender Hooda has vehemently contended
C that the Labour Court was right in rejecting the reference of the
industrial dispute being on the ground that it was barred by
limitation by answering the additional issue No. 2 by placing
reliance upon the decision of this Court in the case of Assistant
Engineer, Rajasthan State Agriculture Marketing Board, Sub-
Division, Kata v. Mohan La/1 wherein this Court has held as
D under:-
"19. We are clearly of the view that though Limitation Act,
1963 is not applicable to the reference made under the
Industrial Disputes Act, 1947, but delay in raising industrial
E dispute is definitely an important circumstance which the
Labour Court must keep in view at the time of exercise of
discretion irrespective of whether or not such objection has
been raised by the other side. The legal position laid down
by this Court in Assistant
F Engineer, Rajasthan Development Corporation and
Anr. v. Gitam Singh (2013) 5 SCC 136 that before
exercising its judicial discretion, the Labour Court has to
keep in view all relevant factors including the mode and
manner of appointment, nature of employment, length of
service, the ground on which termination has been set
G
aside and the delay in raising industrial dispute before
grant of relief in an industrial dispute, must be invariably
followed."
H 1. c2013) 14 sec 543.
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1115
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
11. In our view of the facts and circumstances of the case A
on hand, the reference was made by the State Government to
the Labour Court for adjudication of the existing industrial
dispute; it has erroneously held it to be barred by limitation. This
award was further erroneously affirmed by the High Court, which
is bad in law and therefore the same is liable to be set aside. B
According to Section 10(1) of the Act, the appropriate
governm'ent 'at any time' may refer an industrial dispute for
adjudication, if it is of the opinion that such an industrial dispute
between the workman & the employer exists or is
apprehended. Section 10(1) reads as follows: c
"10(1)[Where the appropriate government is of opinion that
any industrial dispute exists or is apprehended, it may at
any time], by order in writing-
(a) refer the dispute to a Board for promoting a settlement D
thereof; or
(b) refer any matter appearing to be connected with or
relevant to the dispute to a court for inquiry; or
(c) refer the dispute or any matter appearing to be E
connected with, or relevant to, the dispute, if it relates to
any matter specified in the Second Schedule, to a Labour
Court for adjudication; or
(d) refer the dispute or any matter appearing to be F
connected with, or relevant to, the dispute , whether it
relates to any matter specified in the Second Schedule or
the Third Schedule, to a Tribunal for adjudication."
Thus, it is necessary for us to carefully observe the phrase
'at any time' used in this section. Therefore, there arises an G
issue whether the question of limitation is applicable to the
reference of the existing industrial dispute that would be made
by the State Government either to the Labour Court or Industrial
Tribunal for adjudication at the instance of the appellant. This
H
1116 SUPREME COURT REPORTS [2014] 8 S.C.R.
A Court in Avon Services Production Agencies (Pvt.) Ltd. v.
Industrial Tribunal, Haryana & Ors. 2, after interpreting the
phrases 'at any time' rendered in Section 10(1) of the Act, held
thus:-
"? ....... Section 10(1) enables the appropriate Government
B
to make reference of an industrial dispute which exists or
is apprehended at any time to one of the authorities
mentioned in the section. How and in what manner or
through what machinery the Government is apprised of the
dispute is hardly relevant. ...... The only requirement for
c taking action under Section 10(1) is that there must be
some material before the Government which will enable the
appropriate Government to form an opinion that an
industrial dispute exists or is apprehended. This is an
administrative function of the Government as the
D expression is understood in contradistinction to judicial or
quasi-judicial function ... "
Therefore, it is implicit from the above case that in case
of delay in raising the industrial dispute, the appropriate
E government under Section 10(1) of the Act has the power, to
make reference to either Labour Court or Industrial Tribunal, if
it is of the opinion that any industrial dispute exists or is
apprehended at any time, between the workman and the
employer. Further, in Sapan Kumar Pandit v. U.P. State
F Electricity Board & Ors. 3, it is held by this Court as under:-
"15.There are cases in which lapse of time had caused
fading or even eclipse of the dispute. If nobody had kept
the dispute alive during the long interval it is reasonably
possible to conclude in a particular case that the dispute
G ceased to exist after some time. But when the dispute
remained alive though not galvanized by the workmen or
the Union on account of other justified reasons it does not
2. (1979) 1 sec 1.
H 3. c2001) 6 sec 222.
RAGHUBIR SINGH v. G.ENERAL MANAGER, HARYANA 1117
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
cause the dispute to wane into total eclipse. In this case A
when the Government have chosen to refer the dispute for
adjudication under Section4K of the U.P. Act the High
Court should not have quashed the reference merely on
the ground of delay: Of course. the long delay for making
the adjudication could be considered by the adjudicating B
authorities while moulding its reliefs. That is a different
matter altogether. The High Court has obviously gone
wrong in axing down the order of reference made by the
Government for adjudication. Let the adjudicatory process
reach its legal culmination." c
(Emphasis laid by the court)
12. Therefore, in our considered view, the observations
made by this Court in the Rajasthan State Agriculture
Marketing Board case (supra) upon which the learned D
Additional Advocate General for the State of Haryana has
placed reliance cannot be applied to the fact situation of the
case on hand, for the reason that the Labour Court has
erroneously rejected the reference without judiciously
considering all the relevant factors of the case particularly the E
points of dispute referred to it and answered the 2nd issue
regarding the reference being barred by limitation but not on
the merits of the case. The said decision has no application to
the fact situation and also for the reason the catena of decisions
of this Court referred to supra, wherein this Court has F
categorically held that the provisions of Limitation Act under
Article 137 has no application .to make reference by the
appropriate government to the Labour CourUlndustrial Tribunal
for adjudication of existing industrial dispute between workmen
and the employer.
G
13. In the case on hand, no doubt there is a delay in raising
the dispute by the appellant; the Labour Court nevertheless has
the power to mould the relief accordingly. At the time of
adjudication, if the di.spute referred to the Labour Court is not
H
1118 SUPREME COURT REPORTS [2014] 8 S.C.R.
A adjudicated by it, it does not mean that the dispute ceases to
exist. The appropriate government in exercise of its statutory
power under Section 10(1)(c) of the Act can refer the industrial
dispute, between the parties, at any time, to either the
jurisdictional Labour Court/Industrial Tribunal as interpreted by
B this Court in the Avon Services case referred to supra.
Therefore, the State Government has rightly exercised its power
under Section 10(1 )(c) of the Act'and referred the points of
dispute to the Labour Court as the same are in accordance
with the law laid down by this Court in Avon Services & Sapan
c Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief
only on the ground of delay in raising the dispute as held in the
case of S. M. Nilajkar & Ors. v. Telecom District Manager,
Karnataka 4 it was held by this Court as follows-
0
"17. It was submitted on behalf of the respondent that on
account of delay in raising the dispute by the appellants
the High Court was justified in denying relief to the
appellants. We cannot agree ...... In Ratan Chandra
E Sammanta and Ors. v. Union of India and Ors.
Csupra)1993 AIR SCW 2214. it was held that a casual
labourer retrenched by the employer deprives himself of
remedy available in law by delay itself. lapse of time results
in losing the remedy and the right as well. The delay would
F certainly be fatal if it has resulted in material evidence
relevant to adjudication being lost and rendered not
available. However, we do not think that the delay in the
case at hand has been so culpable as to disentitle the
appellants for any relief..... "
G (Emphasis laid by the Court)
In view of the legal principles laid down by this Court in the
above judgment, the reference of the industrial dispute made
H 4. (2003) 4 sec 21.
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1119
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
in the case on hand by the State Government to the Labour A
Court to adjudicate the existing industrial dispute between the
parties was made within a reasonable time, considering the
_pircumstances in which the workman was placed, firstly, as there
was a criminal case pending against him and secondly, the
respondent had assured the workman that he would be s
reinstated after his acquittal from the criminal case. Moreover,
it is reasonable to adjudicate the industrial dispute in spite of
the delay in raising and referring the matter, since there is no
mention of any loss or unavailability of material evidence due
to the delay. Thus, we do not consider the delay in raising the c
industrial dispute and referring the same to the Labour Court
for adjudication as gravely erroneous and it does not debar the
workman from claiming rightful relief from his employer.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative
Marketing Cum-Processing Service Society Limited & Anr5. D
this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating lhat:-
" 10. It follows. therefore. that the provisions of
Article 137 of the Schedule to Limitation Act. 1963 are not E
applicable to the proceedings under the act and that the
relief under it cannot be denied to the workman merely on
the ground of delay. The plea of delay if raised by the
employer is required to be proved as a matter of fact by
showing the real prejudice and not as a merely F
hypothetical defence. No reference to the labour court can
be generally questioned on the ground of delay alone.
Even in a case where the delay in shown to be existing,
the tribunal. labour court or board. dealing with the case
can appropriately mould the ·rielief by declining to grant G
back wages to the workman till the date he raised the
derriand regarding his illegal retrenchment/ termination or
dismissal. The Court may qtso ' in appropriate cases direct
s. (1999) 6 sec a2. H
1120 SUPREME COURT REPORTS (2014] 8 S.C.R.
A the payment of part of the back wages instead of full back
wages ..... "
(Emphasis laid by the Court)
16. Hence, we are of the opinion, having regard to the fact
B and circumstances of the case that there is no delay or laches
on the part of the workman from the date of his acquittal in the
criminal case. Thereafter, upon failure of the respondent in
adhering to the assurance given to the workman that he would
be reinstated after his acquittal from the criminal case, the
C workman approached the conciliation officer and the State
Government to make a reference to the Labour Court for
adjudication of the dispute with regard to the order of dismissal
passed by the respondent. Keeping in mind the date of acquittal
of the appellant and the date on which he approached the
D conciliation officer by raising the dispute, since the respondent
had not adhered to its assurance, the State Government had
rightly referred the dispute for its adjudication. Therefore it
cannot be said that there was a delay on the part of the
appellant in raising the dispute and getting it referred to the
E Labour Court by the State Government.
17. Further, the Labour Court on an erroneous assumption
of law framed the additional issue regarding the limitation in
raising the dispute and its reference by the State Government
to the Labour Court. Thus, the Labour Court has ignored the
F legal principles laid down by this Court in the cases referred
to supra. T.he award passed by the Labour Court was accepted
erroneously by both the learned single Judge and the Division
Bench of the High Court by dismissing the Civil Writ Petition &
the Letters Patent Appeal without examining the case in its
G proper perspective, keeping in view the power of the State
Government under Section 10(1 ){c) and the object and
intendment of the Act. Not adjudicating the existing industrial
dispute on merits between the parties referred to it may lead
to disruption of industrial peace and harmony, which is the
H
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1121
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
foremost important aspect in Industrial Jurisprudence as the A
same would affect the public interest at large.
18. The Labour Court has failed to exercise its statutory
power coupled with duty by not going into the merits of the case
and adjudicating the points of dispute referred to it while
B
answering the additional issue No. 2 framed by it regarding
limitation. Therefore, it is a fit case for us to exercise the
jurisdiction of this Court for the reason of non adjudication of
dispute on merits between the parties with regard to the
justifiability of the order of dismissal passed by respondent.
c
19. In the instant case, as could be seen from the order
No.5278/ECC dated 21.10.1994, the charge sheet bearing No.
8648/ECC dated 08.09.1994 was sent to the village residence
of the appellant through special messenger of the respondent.
However, the charge sheet was not served upon the appellant D
according to the said order; for the reason that the appellant
was neither found in his village residence nor did anyone know
of his whereabouts. Therefore, the appellant was informed
through the newspaper 'Dainik Tribune' dated 04.10.1994 that
he should join his duties and deposit the amount regarding E
tickets within 15 days of publication of the notice and submit
his reply. Despite the same, the appellant neither joined his
duties nor filed his reply. Since the appellant was being
unresponsive, the respondent was of the view that it is in public
interest to not keep the appellant in its service. Therefore, an F
order under Article 311 (2)(b) of the Constitution was passed,
giving effect to order of termination of services of the appellant
and disentitling him of any benefits for the period of absence.
20. From the reason mentioned in the termination order,
it is clear that the appellant continuously remained absent from G
his duties for more than five months. Despite the publication
of the notice, the appellant neither joined his duty nor did he
submit his reply. Therefore, the respondent straight away
passed an order of termination without conducting an enquiry
as required in law against the appellant to prove the alleged H
1122 SUPREME COURT REPORTS [2014] 8 S.C.R.
A misconduct of unauthorised absence by placing reliance upon
Article 311 (2)(b) of the Constitution of India.
21. In view of the undisputed facts narrated as above, it.is
clear that no enquiry was conducted by the appellant against
B the workman to prove the alleged misconduct of unauthorised
absence from his duties. The reason for dispensing with the
enquiry is not at all forthcoming in the order of termination which
refers to the aforesaid constitutional provision. With regard to
conduct and discipline of its employees the respondent is
c bound to follow the Industrial Employment Standing Orders Act,
1946. The Labour Court has failed to take into account these
important legal aspects of the case and has erroneously
rejected the reference by answering the additional issue no.2
on the question of limitation which is totally irrelevant and not
0 adjudicating the points of dispute on merits has rendered its
award bad in law. This amounts to failure to exercise its
statutory power coupled with duty.
22. We are of the considered view that the disciplinary
proceedings initiated by the respondent under Rule 7 of the
E Haryana Civil Services (Punishment and Appeal) Rules, 1987
are not only untenable in law but also contrary to the legal
principles laid down by this Court. The appellant being a
workman as defined under Section 2(s) of the Act is an
employee of the respondent therefore he will be governed by
F the Model Standing Orders framed under the Industrial
Employment (Standing Orders) Act, 1946.
23. Thus, the fact remains that the disciplinary proceedings
were not initiated under the provisions of the Industrial
G Employment (Standing Orders) Act, 1946. The respondent, both
before the Labour Court and the High Court, has erroneously
placed reliance on the order of termination passed against the
workman without producing any evidence on record to justify
the alleged misconduct of unauthorised absence of the
H appellant. Therefore, the points of dispute referred to the
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1123
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
Labour Court should have been answered affirmatively by it and A
an award granting the reliefs as prayed by the appellant should
have been passed. This aspect of the matter is not examined
by the High Court either in the Writ Petition or in the Letters
Patent Appeal. Therefore, the impugned judgment and order
of the High Court and award of the Labour Court are bad in 8
law and liable to be set aside.
24. Both the Labour Court and the High Court have failed
to examine the findings recorded in the order of termination
which was the subject-matter of reference rtlade by the state
government for adjudication. The Labour Court and the High C
Court have failed to examine another important aspect that there
is neither any tenable explanation nor any material evidence
produced by the respondent before the courts below to justify
its adoption of the Haryana Civil Services (Punishment and
Appeal) Rules for initiating the disciplinary proceedings against D
the appellant-workman. In the absence of plea and material
documents· produced by the respondent, the proceedings
initiated and passing of the order of termination is bad in law.
The appellant is a workman in terms of Section 2(s) of the Act,
therefore, Model Standing Orders framed under the provisions. E
of Industrial EmploylTient (Standing Orders) Act of 1946 and the
principles of natural justice are required to be followed by the
respondent for initiating disciplinary proceedings and taking
disciplinary action against the workman. Since the respondents
have not followed the procedure laid down therein from the F
beginning till the passing of the order of termination, the same
is vitiated in law and hence, liable to be set aside.
25. We are of the view that the Labour Court and the High
Court have erred in not deciding the ingustrial dispute between
the parties on the basis of admitted facts, firstly, the enquiry not G
being conducted for the alleged misconduct of unauthorised
absence by the appellant from 02.04.1993 and secondly, the
enquiry being dispensed with by invoking Article 311 (b)(2) of
the Constitution of India without any valid reason. Moreover, an
H
1124 SUPREME COURT REPORTS [2014] 8 S.C.R.
A order stating the impossibility of conducting the enquiry and
dispensing with the same was not issued to the appellant. The
reasoning assigned in the order of termination is bad in law.
Therefore, the impugned judgment, order and award of the High
Court and the Labour Court are required to be set aside as
8 the same are contrary to the provisions of the Act, principles
of natural justice and the law laid down by this Court in catena
of cases referred to supra.
26. In addition to the above findings and reasons, the case
of Calcutta Dock Labour Board and Ors. v. Jaffar Imam and
C Ors 6. is aptly applicable to the fact situation of the case on hand.
In the aforesaid case, the respondents had been detained
under.the Preventive Detention Act, 1950. Thereafter, they were
terminated by the appellants without being given a reasonable
opportunity to show cause as to why they shouldn't be
D terminated. It was held by this Court as follows:-
"13.Even in regard to its employees who may have been
detained under the Act, if after their release the appellant
wanted to take disciplinary action against them on the
E ground that they were guilty of misconduct, it was absolutely
essential that the appellant should have held a proper
enquiry. At this enquiry, reasonable opportunity should have
been given to the respondents to show cause and before
reaching its conclusion, the appellant was bound to lead
evidence against the respondents, give them a reasonable
F
chance to test the said evidence, allow them liberty to lead
evidence in defence, and then come to a decision of its
own. Such an enquiry is prescribed by the requirements
of natural justice and an obligation to hold such an enquiry
is also imposed on the appellant by clause 36(3) of the
G Scheme of 1951 and cl. 45(6) of the Scheme of 1956. It
appears that in the present enquiry, the respondents were
not given notice of any specific allegations made against
them, and the record clearly shows that no evidence was
H 6. AIR 1966 SC 282.
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1125
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
led in the enquiry at all. It is only the detention orders that A
were apparently produced and it is on the detention orders
alone that the whole proceedings rest and the impugned
orders are founded. That being so, we feel no hesitation
in holding that the Court of Appeal was perfectly right in
setting aside the respective orders passed by the two B
leaned single Judges when they dismissed the three writ
petitions filed, by the respondents.
14....... The circumstance that the respondents happened
to be detained can afford no justification for not complying C
with the relevant statutory provision and not following the
principles of natural justice. Any attempt to short-circuit the
procedure based on considerations of natural justice must.
we think. be discouraged if the rule of law has to prevail.
and in dealing with the question of the liberty and livelihood
of a citizen. considerations of expediency which are not D
permitted by law can have no relevance whatever ... "
(Emphasis laid by the Court)
27. In the present case, before passing the order of E
dismissal for the act of alleged misconduct by the workman-
appellant, the respondent should have i!?sued a show cause
notice to the appellant, calling upon him to show cause as to
why the order of dismissal should not be passed against him.
The appellant being an employee of the respondent was
F
dismissed without conducting an enquiry against him and not
ensuring compliance with the principles of natural justice. The
second show cause notice giving an opportunity to show cause
to the proposed punishment before passing the order of
termination was also not given to the appellant-workman by the
respondent which is mandatory in law as per the decisions of G·
this Court in the case of Union of India and others v. Mohd.
Ramzan Khan 7 and Managing Director, ECIL, Hyderabad, v.
Karunakar8.
1. (1998) 4 sec 231.
8. (1993) 4 sec 121. H
1126 SUPREME COURT REPORTS (2014) 8 S.C.R.
A 28. With respect to the case on hand, the appellant was
on unauthorised absence only due to the fact that he had
genuine constraints which prevented him from joining back his
duties. The unauthorised absence of the appellant which lead
to his termination was due to the fact that the he was falsely
B implicated in the criminal case filed at the instance of the
respondent and that he must have had reasonable
apprehension of arrest and was later in judicial custody. It is to
be noted that out of the total period of the alleged unauthorised
absence, the appellant was under judicial custody for two
c months due to the criminal case filed against him at the
instance of the respondent.
29. Further, assuming for the sake of argument that the
unauthorised absence of the appellant is a fact, the employer
is empowered to grant of leave without wages or extraordinary
D leave. This aspect of the case has not been taken into
consideration by the employer at the time of passing the order
of termination. Therefore, having regard to the period of
unauthorised absence and facts and circumstances of the case,
we deem it proper to treat the unauthorised absence period
E as leave without wages. In our view, the termination order is
vitiated since it is disproportionate to the gravity of misconduct
alleged against him. The employment of the appellant-workman
with the respondent is the source of income for himself and his
family members' livelihood, thereby their liberty and livelihood
F guaranteed under Article 21 of the Constitution of India is
denied as per the view of this Court in its Constitution Bench
decision in Olga Tellis & Ors. v. Bombay Municipal
Corporation and Ors9• wherein it was held as under:-
"32 ..... The sweep of the right to life conferred by Article 21.
G
is wide and far reaching. It does not mean merely that life
cannot be extinguished or taken away as, for example, by
the imposition and execution of the death sentence, except
according to procedure established by law. That is but one
H 9. (1985) 3 sec 545.
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1127
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
aspect of the right to life. An equally important facet of that A
right is the right to livelihood because, no person can live
without the means of living, that is, the means of livelihood.
If the right to livelihood is not treated as a part of the
constitutional right to life, the easiest way of depriving a
person his right to life would be to deprive him of his means B
of livelihood to the point of abrogation. Such deprivation
would not only denude the life of its effective content and
meaningfulness but it would make life impossible to live.
And yet, such deprivation would not have to be In
accordance with the procedure established by law, if the C
right to livelihood is not regarded as a part of the right to
life. That, which alone makes it possible to live, leave aside
what makes life liveable, must be deemed to be an integral
component of the right to life. Deprive a person of his right
to livelihood and you shall have deprived him of his life .... ."
0
30. The appellant workman is a conductor in the
respondent-statutory body which is an undertaking under the
State Government of Haryana thus it is a potential employment.
Therefore, his services could not have been dispensed with by
passing an order of termination on the alleged ground of E
unauthorised absence without considering the leave at his
credit and further examining whether he is entitled for either
leave without wages or extraordinary leave. Therefore, the order
of termination passed is against the fundamental rights
guaranteed to the workman under Articles 14, 16, 19 and 21 F
of the Constitution of India and against the statutory rights
conferred upon him under the Act as well as against the law
laid down by this Court in the cases referred to supra. This
important aspect of the case has not been considered by the
courts below. Therefore, the impugned award of the Labour G
Court and the judgment & order of the High Court are liable to
be set aside.
31. The rejection of the reference by the Labour Court by
answering the additional issue no. 2 regarding the delay, laches
H
1128 SUPREME COURT REPORTS [2014) 8 S.C.R.
A and limitation without adjudicating the points of dispute referred
to it on the merits amounts to failure to exercise its statutory
power under Section 11A of the Act. Therefore, we have to
interfere with the impugned award o"f the Labour Court and the
judgment & order of the High Court as it has erroneously
8 confirmed the award of the Labour Court without examining the
relevant provisions of the Act and decisions of this Court
referred to supra on the relevant issue regarding the limitation.
32. Furthe'r, in the case of The Managing Director, U.P.
Warehousing Corporation and Ors., v. Vijay Narayan
C Vajpayee 10, in which the ratio decidendi has got relevance to
the fact situation of the case on hand this Court held as under
"21.The question whether breach of statutory regulations
D or failures to observe the principles of natural justice by a
statutory Corporation will entitle an employee of such
Corporation to .claim a declaration of continuance in
service and the question whether the employee is entitled
to the protection of Arts. 14 and 16 against the Corporation
E were considered at great length in Sukhdev Singh & Ors.
v. Bhagatram Sardar Singh Raghuvanshi & Anr.(1) The
question as to who may be considered to be agencies or
instrumentalities of the Government was also considered,
again at some length, by thi~ Court in Ramana Dayaram
Shetty v. The International Airport Authority of India &
F
Ors.(2)
22. I find it very hard indeed to discover any distinction,
on principle, between a person directly under the
employment of the Government and a person under the
G employment of an agency or instrumentality of the
Government or a Corporation, set up under a statute or
incorporated but wholly owned by the Government.. ...
There is no good reason why. if Government is bound to
H 10. (19BO) 3 sec 459.
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1129
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
observe the equality clauses of the constitution in the A
matter of employment and in its dealings with the
employees. the Corporations set up or owned by the
Government should not be equally bound and why. instead.
such Corporations could become citadels of patronage
and arbitrary action. In a country like ours which teems with B
population, where the State, its agencies. its
instrumentalities and its Corporations are the biggest
employers and where millions seek employment and
security. to confirm the applicability of the equality clauses
of the constitution. in relation to matters of employment. c
strictly to direct employment under the Government is
perhaps to mock at the Constitution and the people. Some
element of public employment is all that is necessary to
take the employee beyond the reach of the rule which
denies him access to a Court so enforce a contract of 0
employment and denies him the protection of Arts. 14 and
16 of the Constitution. After all employment in the public
sector has grown to vast dimensions and employees in the
public sector often discharge as onerous duties as civil
servants and participate in activities vital to our country's E
economy. In growing realization of the importance of
employment in the public sector. Parliament and the
Legislatures of the States have declared persons in the
service of local authorities. Government companies and
statutory corporations as public servants and, extended to
them by express enactment the protection usually extended F
to civil servants from suits and prosecution. It is. therefore.
but right that the independence and integrity of those
employed in the public sector should be secured as much
as the independence and integrity of civil servants."
G
(Emphasis given by the Court)
The above cardinal legal principles laid down by this Court
with all fours are applicable to the case on hand for the reasons
that the respondent is a statutory body which is under the control
H
1130 SUPREME COURT REPORTS [2014] 8 S.C.R.
A of the State Government and it falls within the definition of
Article 12 of the Constitution of India and therefore Part Ill of
the Constitution is applicable to its employees.
33. Once the reference is made by the State qQvernment
in exercise of its statutory power to the Labour Court for
8
adjudication of the existing industrial dispute on the points of
dispute, it is the mandatory statutory duty of the Labour Court
under Section 11A of the Act to adjudicate the dispute on
merits on the basis of evidence produced on record. Section
11A was inserted to the Act by the Parliament by the
C Amendment Act 45 of 1971 (w.e.f. 15.12.1972) with the avowed
object to examine the important aspect of proportionality of
punishment imposed upon a workman if, the acts of misconduct
alleged against workman are proved. The "Doctrine of
Proportionality" has been elaborately discussed by this Court
D by interpreting the above provision in the case of Workmen of
Messrs Firestone Tyre & Rubber Company of India v.
Management & Ors 11 • as under:-
"33. The question is whether section 11A has made any
E changes in the legal position mentioned above and if so,
to what extent? The Statement of objects and reasons
cannot be taken into account for the purpose of interpreting
the plain words of the section. But it gives an indication
as to what the Legislature wanted to acbieve. At the time
F of introducing section MA in the Act, the legislature must
have been aware of the several principles laid down in the
various decisions of this Court referred to above. The
object is stated to be that the, Tribunal should have power
in cases, where necessary, to set aside the order of
discharge ·or dismissal and direct reinstatement or award
G
any lesser punishment. The Statement of objects and
reasons has specifically referred to the limitation. on the
powers of an Industrial Tribunal, as laid, down by this Court
H 11. 1973 (1) sec 813.
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1131
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
in Indian Iron & Steel Co. Ltd. V. Their Workmen (AIR 1958 A
SC130 at P.138).
34. This will be a convenient stage to consider the contents
of section 11A. To invoke section 11A, it is necessary that
an industrial dispute of the type mentioned therein should
B
have been referred to an Industrial Tribunal for adjudication.
In the course of such adjudication, the Tribunal has to be
satisfied that the, order of discharge or dismissal was not
justified. If it comes to such a conclusion, the Tribunal has
to set aside the order and direct reinstatement of the
workman on such terms as it thinks fit. The Tribunal has C
also ,power to give any other relief to the work-man
including the imposing of a lesser punishment having due
regard to the circumstances. The proviso casts a duty on
the Tribunal to rely only on the materials on record and
prohibits it from taking any fresh evidence." D
Thus, we believe that the Labour Court and the High Court
have failed in not adjudicating the dispute on merits and
also in not discharging their statutory duty in exercise of
their power vested under Section 11A of the Act and E
therefore, the impugned judgment, order and award are
contrary to the provisions of the Act and law laid down by
this Court in the above case.
/ 34. Further, the object of insertion of Section 11A of the
Act is traceable to the International Labour Organisation F
resolution as it is stated in the case of Workmen of Messrs
Firestone Tyre & Rubber case (supra) that:-
"3.The International Labour Organisation, in its
recommendation (No. 119) concerning termination of G
employment at the initiative of the employer adopted in
June 1963, has recommended that a worker aggrieved by
the termination of his employment should be entitled, to
appeal against the termination among others, to a neutral
body such as an arbitrator, a court, an arbitration H
1132 SUPREME COURT REPORTS (2014] 8 S.C.R.
A committee or a similar body and that the neutral body
concerned should be empowered to examine the reasons
given in the termination of employment and the other
circumstances relating to the case, and to render a
decision on the justification of the termination. The
B International Labour Organisation has further
recommended that the neutral body should be empowered
(if it finds that the termination of employment was
unjustified) to order that the worker concerned, unless
reinstated with unpaid wages, should be paid adequate
c compensation or afforded some other relief.
In accordance with these recommendations, it is
considered that the Tribunal's power in an adjudication
proceeding relating to discharge or dismissal of a
workman should not be limited and that the Tribunal should
D have the power in cases wherever necessary, to 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 workmen including the award of any lesser punishment
E in lieu of discharge or dismissal as the circumstances of
the case may require. For this purpose, a new section 11A
is proposed to be inserted in the Industrial Disputes Act,
1947.... "
F Therefore, we are of the firm view that the Labour Court
and the High Court have failed to adjudicate the dispute referred
to it on the merits. This has lead to gross miscarriage of justice
and therefore, we have to exercise our jurisdiction under Article
136 of the Constitution of India and interfere with the impugned
G judgment, order and award of the High Court and the Labour
Court to do justice to the workman who has been relentlessly
litigating for his legitimate rights.
35. Having regard to the facts and circumstances of this
case, we are of the view that it is important to discuss the Rule
H
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1133
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
of the 'Doctrine of Proportionality' in ensuring preservation of A
the rights of the workman. The principle of 'Doctrine of
Proportionality' is a well recognised one to ensure that the
action of the employer against employees/workmen does not
impinge their fundamental and statutory rights. The above said
important doctrine has to be followed by the employer/ B
employers at the time of taking disciplinary action against their
employees/workmen to satisfy the principles of natural justice
and safeguard the rights of employees/workmen.
36. The above said "Doctrine of Proportionality" should be C
applied to the fact situation as we are of the firm view that the
order of termination, even if we accept the same is justified, it
is disproportionate to the gravity of misconduct. In this regard,
it would be appropriate for us to refer to certain paragraphs
from the decision of this Court in the case of Om Kumar and
Ors. v. Union of lndia 12, wherein it was held as under:- D
"66. It is clear from the above discussion that in India
where administrative action is challenged under
Article 14 as being discriminatory, equals are treated
unequally or unequals are treated equally, the question is E
for the Constitutional Courts as primary reviewing Courts
to consider correctness of the level of discrimination
applied and whether it is excessive and whether it has a
nexus with the objective intended to be achieved by the
administrator. Hence the Court deals with the merits of the F
balancing action of the administrator and is, in essence,
applying 'proportionality' and is a primary reviewing
authority.
67. But where, an administrative action is challenged as
'arbitrary' under Article 14 on the basis of Royappa (as in G
cases where punishments in disciplinary cases are
challenged), the question will be whether the administrative
order is 'rational' or 'reasonable' and the test then is the
12. c2001) 2 sec 386. H
1134 SUPREME COURT REPORTS [2014] 8 S.C.R.
A Wednesbury test. The Courts would then be confined only
to a secondary role and will only have to see whether the
administrator has done well in his primary role, whether he
has acted illegally or has omitted relevant factors from
consideration or has taken irrelevant factors into
B consideration or whether his view is one which no
reasonable person could have taken. If his action does n6l
satisfy these rules, it is to be treated as arbitrary. [In G.B.
Mahajan vs. Jalgaon Municipal Council] AIR 1991 SC
1153 )]. Venkatachaliah, J. (as he then was) pointed out
c that 'reasonableness' of the administrator under
Article 14 in the context of administrative law has to be
judged from the stand point of Wednesbury rules. In Tata's
Cellular vs. Union of India AIR 1996 SC 1f, Indian Express
Newspapers vs. Union of India(: [1986]1591TR856(SC) ),
Supreme Court Employees' Welfare Association vs. Union
D
of India and Anr. (1989)11 LLJ 506 SC) and UP. Financial
Corporation v. GEM CAP (India) Pvt. Ltd. ( [1993]2 SCR
149 ), while Judging whether the administrative action is
'arbitrary' under Article 14(i.e. otherwise then being
discriminatory), this Court has confined itself to a
E Wednesbury review always.
68. Thus, when administrative action is attacked as
discriminatory under Article 14, the principle of primary
review is for the Courts by applying proportionality.
F However, where administrative action is questioned as
'arbitrary' under Article 14, the principle of secondary
review based on Wednesbury principles applies."
37. Additionally, the proportionality and punishment in
G service law has been discussed by this Court in the Om Kumar
case (supra) as follows:-
"69. The principles explained in the last preceding
paragraph in respect of Article 14 are now to be applied
H
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1135
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
here where the question of 'arbitrariness' of the order of A
punishment is questioned under Article 14.
70. In this context, we shall only refer to these cases. In
Ranjit Thakur vs. Union of India (1988CriLJ158), this Court
referred to 'proportionality' in the quantum of punishment
8
but the Court observed that the punishment was
'shockingly' disproportionate to the misconduct proved. In
B.C. Chaturvedi v. Union of India: (1996)1LLJ1231SC), this
Court stated that the Court will not interfere unless the
punishment awards was one which shocked the
conscience of the Court. Even then, the court would remit C
the matter back to the authority and would not normally
substitute one punishment for the other. However, in rare
situations, the Court could award an alternative penalty. It
was also so stated in Ganayutham."
D
38. With respect to the proportionality of the punishment
of 'censure', it was further observed by this Court in the Om
Kumar case (supra) that:-
"75. After giving our anxious consideration to the above
submissions and the facts and the legal principles above E
referred to, we have finally come to the conclusion that it
will be difficult for us to say that among the permission
minor punishments, the choice of the punishment of
'censure' was violative of the VVednesbury rules. No
relevant fact was omitted nor irrelevant fact was taken into F
account. There is no illegality. Nor could we say that it was
shockingly disproportionate. The administrator had
considered the report of Justice Chinnappa Reddy
Commission, the finding of the Inquiry Officer. the opinion
of the UPSC which was given twice and the views of the G
Committee of Secretaries. Some were against the officer
and some were in his favour. The administrator fell that
there were two mitigating factors (i) the complicated stage
at which the officer was sent to DOA and (ii) the absence
H
1136 SUPREME COURT REPORTS [2014) 8 S.C.R.
A of malafides. In the final analysis, we are not inclined to
refer the matter to the Vigilance Commissioner for upward
revision of punishment."
39. Now, it is necessary for this Court to examine another
aspect of the case on hand, whether the appellant is entitled
8 for reinstatement, back wages and the other consequential
benefits. In the case of Deepali Gundu Surwase V. Kranti
Junior Adhyapak Mahavidyalaya (D. Ed) and Ors. 13, this Court
opined as under:-
c "22. The very idea of restoring an employee to the position
which he held before dismissal or removal or termination
of service implies that the employee will be put in the same
position in which he would have been but for the illegal
action taken by the employer. The injury suffered by a
D person, who is dismissed or removed or is otherwise
terminated. from service cannot easily be measured in
terms of money. With the passing of an ord_er which has
the effect of severing the employer employee relationship,
the latter's source of income gets dried up. Not only the
E concerned employee, but his entire family suffers grave
adversities. They are deprived of the source of
sustenance. The children are deprived of nutritious food
and all opportunities of education and advancement in life.
At times, the family has to borrow from the relatives and
other acquaintance to avoid starvation. These sufferings
F
continue till the competent adjudicatory forum decides on
the legality of the action taken by the employer. The
reinstatement of such an employee, which is preceded by
a finding of the competent judicial/quasi judicial body or
Court that the action taken by the employer is ultra
G vires the relevant statutory provisions or the principles of
natural justice, entitles the employee to claim full back
wages. If the employer wants to deny back wages to the
employee or contest his entitlement to get consequential
H 13. (2013) 10 sec 324.
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1137
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
benefits, then it is for him/her to specifically plead and A
prove that during the intervening period the employee was
gainfully employed and was getting the same emoluments.
Denial of back wages to an employee, who has suffered
due to an illegal act of the employer would amount to
indirectly punishing thE:;! concerned employee and B
, rewarding the employer by relieving him of the obligation
to pay back wages including the emoluments
23. A somewhat similar issue was considered by a three
Judge Bench in Hindustan Tin Works Pvt. Ltd. v.
Employees of Hindustan Tin Works Pvt. Ltd. c
(supra) ...... The relief of reinstatement with continuity of
service can be granted where termination of service is
found to be invalid. It would mean that the employer has
taken away illegally the right to work of the workman
contrary to the relevant law or in breach of contract and D
simultaneously deprived the workman of his earnings. If
thus the employer is found to be in the wrong as a result
of which the workman is directed to be reinstated. the
employer could not shirk his responsibility of paying the
wages which the workman has been deprived of by the E
illegal or invalid action of the employer. Speaking
realistically. where termination of service is questioned as
invalid or illegal and the workman has to go through the
gamut of litigation, his capacity to sustain himself
throughout the protracted litigation is itself such an F
awesome factor that he may not survive to see the day
when relief is granted. More so in our system where the
law's proverbial delay has become stupefying. If after such
a protracted time and energy consuming litigation during
which period the workman just sustains himself, ultimately G
he is to be told that though he will be reinstated. he will be
denied the back wages which would be due to him. the
workman would be subjected to a sort of penalty for no fault
of his and it is wholly undeserved. Ordinarily, therefore. a
workman whose service has been illegally terminated H
1138 SUPREME COURT REPORTS [2014) 8 S.C.R.
A would be entitled to full back wages except to the extent
he was gainfully employed during the enforced idleness.
That is the normal rule. Any other view would be a premium
on the unwarranted litigative activity of the employer. If the
employer terminates the service illegally and the
B termination is motivated as in this case viz. to resist the
workmen's demand for revision of wages. the termination
may well amount to unfair labour practice. In such
circumstances reinstatement being the normal rule, it
should be followed with full back wages .....
c In the very nature of things there cannot be a strait-jacket
formula for awarding relief of back wages. All relevant
considerations will enter the verdict. More or less. it would
be a motion addressed to the discretion of the Tribunal.
Full back wages would be the normal rule and the party
D objecting to it must establish the circumstances
necessitating departure. At that stage the Tribunal will
exercise its discretion keeping in view all the relevant
circumstances. But the discretion must be exercised in a
judicial and judicious manner. The reason for exercising
E discretion must be cogent and convincing and must appear
on the face of the record. When it is said that something
is to be done within the discretion of the authority. that
something is to be done according to the Rules of reason
and justice. according to law and not humour. It is not to.
F be arbitrary, vague and fanciful but legal and regular ....
24. Another three Judge Bench considered the same issue
in Surendra Kumar Verma v. Central Government
Industrial Tribunal-cum-Labour Court, New Delhi (supra)
and observed: Plain common sense dictates that the
G
removal of an order terminating the services of workmen.
must ordinarily lead to the reinstatement of the services of
the workmen. It is as if the order has never been. and so
it must ordinarily lead to back wages too ...... ln such and
other exceptional cases the court may mould the relief. but.
H
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1139
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
ordinarily the relief to be awarded must be reinstatement A
with full back wages. That relief must be awarded where
no special impediment in the way of awarding the relief is
clearly shown. True. occasional hardship may be caused
to an employer but we must remember that. more often
than not. comparatively far greater hardship is certain to B
be caused to the workmen if the relief is denied than to
the employer if the relief is granted."
(Emphasis supplied by this Court)
40. The above critical analysis of law laid down by this c
Court in the case referred to supra, is very much relevant to the
case on hand, which is neither discussed nor considered and
examined by the courts below while answering the reference
made by the State Government and passing the award,
judgments & orders in a cavalier manner. Thus, the lives of the D
appellant and his family members have been hampered.
Further, on facts, we have to hold that the order of termination
passed is highly disproportionate to the gravity of misconduct
and therefore shocks the conscience of this Court. Hence, we
hold that the appellant is entitled for the reliefs as prayed by E
him in this appeal.
41. In view of the foregoing reasons, the award of the
Labour Court and the judgment & order of the High Court are
highly erroneous in law. Therefore, the same are required to
be interfered with by this Court in exercise of the appellate F
jurisdiction as there is miscarriage of justice for the workman
in this case.
42. It is an undisputed fact that the dispute was raised by
the workman after he was acquitted in the criminal case which G
was initiated at the instance of the respondent. Raising the
industrial dispute belatedly and getting the same referred from
the State Government to the Labour Court is for justifiable
reason and the same i$ supported by law laid down by this
Court in Calcutta Dock Labour Board (supra). Even assuming H
1140 SUPREME COURT REPORTS (2014) 8 S.C.R.
A for the sake of the argument that there was a certain delay and
laches on the part of the workman in raising the industrial
dispute and getting the same referenced for adjudication, the
Labour Court is statutorily duty bound to answer the points of
dispute referred to it by adjudicating the same on merits of the
B case and it ought to have moulded the relief appropriately in
favour of the workman. That has not been done at all by the
Labour Court. Both the learned single Judge as well as the
Division Bench of the High Court in its Civil Writ Petition and
the· Letters Patent Appeal have failed to consider this important
c aspect of the matter. Therefore, we are of the view that the
order of termination passed by the respondent, the award
passed by the Labour Court and the judgment & order of the
High Court are liable to be set aside. When we arrive at the
aforesaid conclusion, the next aspect is whether the workman
is entitled for reinstatement, back wages and consequential
0
benefits. We are of the view that the workman must be
reinstated. However, due to delay in raising the industrial
dispute, and getting it referred to the Labour Court from the
State Government, the workman will be entitled in law for back
wages and other consequential benefits from the date of raising
E the industrial dispute i.e. from 02.03.2005 till reinstatement with
all consequential benefits.
43. For the foregoing reasons, we grant the following reliefs
to the workman by allowing this appeal:
F
(i) The award of the Labour Court, judgment and
orders passed by the High Court are set aside;
(ii) The respondent is directed to reinstate the
appellant-workman with back wages from the date
G of raising the industrial dispute i.e. 02.03.2005 till
the date of his reinstatement with all consequential
benefits such as continuity of service, wage
revisions and other statutory monetary benefits as
H
RAGHUBIR SINGH v. GENERAL MANAGER, HARYANA 1141
ROADWAYS, HISSAR [V. GOPALA GOWDA, J.]
the respondent has been litigating the dispute A
without tenable and acceptable reason; and
(iii) Since the appellant-workman was compelled to
take on this long battle of litigation to get his rights
enforced from the Court of law, the respondent is B
directed to implement this order within six weeks
from the date of receipt of the copy of this
Judgment.
The appeal is allowed. No costs.
c
Nidhi Jain Appeal allowed.
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