Allowed

Chairman/Manager, M/S the Kangra District Wholesale Co-Operative Cnsumer and Marketing Fed Ltd. v. Ramesh Chand

Himachal Pradesh HC1 Apr 2024LPA/84/2019

Case brief

AI extract

What is this about?

The High Court allowed the Federation's Letters Patent Appeal against a Writ Court order that had granted regularization to a salesman. The Court reasoned that regularization is based on merit-cum-seniority, not absolute seniority, and rejected claims that the worker's non-regularization was arbitrary given admitted misconduct.

What did the court decide?

The impugned order dated 30.08.2019 passed by the learned writ Court was quashed and set aside. The Labour Court award dated 24.04.2012 is affirmed.

Chairman/Manager, M/S the Kangra… — Labour and Industrial Disputes | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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LPA No.84 of 2019

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Decided on: 01.04.2024

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_________________________________________________________ The Chairman/Manager, M/s The Kangra District Wholesale Cooperative Consumer and Marketing Federation Ltd. ....Appellant Versus Ramesh Chand …Respondent ______________________________________________________ Coram_ The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge The Hon’ble Mr. Justice Sushil Kukreja, Judge

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Whether approved for reporting?¹

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____________________________________________________ For the appellant : Ms. Anjali Soni Verma, Advocate. For the respondent: Mr. Rahul Mahajan, Advocate. __________________________________________________ Sushil Kukreja, Judge (Oral)

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The instant Letters Patent Appeal has been preferred by the appellant against the impugned order dated 30.08.2019 passed by the learned writ Court, whereby the writ petition filed by respondent- Ramesh Chand (hereinafter referred to as the ‘petitioner’) was allowed.

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Brief facts of the case, as emerging from the record, are that petitioner was appointed by the appellant-The Chairman/

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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Manager, M/s The Kangra District Wholesale Cooperative Consumer and Marketing Federation Ltd (hereinafter referred to as the ‘Federation’) as daily waged cleaner in the year 1986 and he continued as such upto 18.10.1988 and thereafter, his services were promoted as salesman by the Federation on contract basis w.e.f. 19.10.1998. In the year, 1995, one Krishan Chand was also appointed by the Federation as salesman on contract basis, whose services were regularized in the year 1997 in the pay scale of Rs.400-600 on the post of salesman, however, the services of the petitioner, who was senior to said Krishan Chand, have not been regularized. Resultantly, the petitioner raised the industrial dispute and accordingly the matter was referred to H.P. Industrial Tribunalcum-Labour Court, Dharamshala for adjudication. The reference was formulated as under:-

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“Whether the action of the employer i.e. The Chairman/Manager, M/s The Kangra District Whole Sale Co-operative Consumer and Marketing Federation Ltd. Dharamshala, Distt. Kangra, H.P. to not regularize Shri Ramesh Chand, s/o Sh. Dalip Singh as Sales-Man in the regular Pay-Scale of Rs.400-600/- from the date when Sh.Krishan Chand, junior to him was regularized, is proper and justified? If not, what relief of service benefits, compensation and arrear of back wages the above worker is entitled to?”

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The reference was answered against the petitioner, vide

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award dated 24.04.2012 passed by the learned Labour Court-cum-

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Industrial Tribunal, Dharamshala, H.P. Feeling aggrieved and dissatisfied against the award dated 24.04.2012, the petitioner preferred a writ petition being CWP No.6240 of 2012 and after hearing learned counsel for the parties, the learned writ Court had allowed the writ petition, vide the impugned order dated 30.08.2019 and answered the reference in favour of the petitioner alongwith all consequential benefits. Consequently, the appellant-Federation preferred the instant appeal against the aforesaid impugned order dated 30.08.2019.

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Learned counsel for the appellant contended that the impugned order dated 30.08.2019 passed by the learned writ Court is contrary to the facts and circumstances of the case as the petitioner was not regularized because his work and conduct was found unsatisfactory. She further contended that the petitioner had embezzled a sum of Rs.13,566.35 paisa and in the subsequent years, i.e. on 31.03.1992, 31.03.1993, 31.03.1994, 21.02.1995, 31.03.2004, 14.01.2005, 15.02.2005, 14.10.2005, 03.11.2005 and 20.03.2005, the total embezzled amount of Rs.72,212.09 paisa was found in the stocks, as such, the recovery was made from him. She also contended that petitioner had admitted the embezzlement in

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the affidavit dated 11.08.2003 Ext.RW1/D, sworn by him and he also admitted that he would not behave in such a manner in future.

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On the other hand, learned counsel for the petitioner contended that the appellant-Federation made false charges of embezzlement against the petitioner. He further contended that the petitioner had not embezzled any amount and at the most the same could be treated as a shortage in stock.

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We have heard learned counsel for the appellant as well as the learned counsel for the respondent and also carefully gone through the record of the case.

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The Industrial Disputes Act, 1947 is a piece of beneficial legislation and has conferred wide powers and jurisdiction to the Labour Courts/Tribunals to make appropriate awards in determining the industrial disputes presented before it. It is also pertinent to mention that the law in its wisdom has not provided any appeal to be filed against an award. Thus, the Labour Court/Tribunal is the final adjudicator of facts. The jurisdiction of the writ Court under Article 226 is very limited while examining the Award passed by the Industrial Tribunal and while exercising powers under writ jurisdiction, it cannot interfere with the factual findings of the Labour Court which are based on the appreciation of facts based on

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evidence adduced before it. In Amrit Vanaspati Company Limited Vs. Khem Chand & another, reported as 2006 (6) SCC 325, the Hon’ble Supreme Court held as under:-

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“……In our opinion, the High Court while exercising powers under writ jurisdiction cannot deal with aspects like whether the quantum of punishment meted out by the Management to a workman for a particular misconduct is sufficient or not. This apart, the High Court while exercising powers under the writ jurisdiction cannot interfere with the factual findings of the Labour Court which are based on appreciation of facts adduced before it by leading evidence…..”

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It is a settled proposition of law that the award of the Labour Court can be set aside only on limited circumstances, like violation of principles of natural justice, perversity of findings etc. In the case of State of Haryana & others Vs. Devi Dutt & others, (2006) 13 SCC 32 , the Apex Court has inter alia held that the writ Court can interfere into the factual findings of fact only if (1) the Award is perverse; (2) the Labour Court has applied wrong legal principles; (3) the Labour Court has posed wrong questions; (4) the Labour Court has not taken into consideration the relevant facts; or (5) the Labour Court has arrived at findings on the basis of irrelevant facts or on extraneous consideration.

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Thus, it is pivotal to examine the present Award on the basis of the settled legal propositions. The appellant has assailed the impugned order passed by the learned writ Court predominantly

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on the ground that the name of the petitioner alongwith three other persons was sent for consideration to the Board, but due to the unsatisfactory work of the petitioner, he was not regularized as he had done embezzlement during his service period and used to remain willfully absent from duty without permission of the employer from time to time.

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The perusal of record reveals that the petitioner was initially appointed as daily waged cleaner in the year 1986 by the Federation and he was re-designated as salesman on contract basis on 19.10.1988. At the time of his appointment as salesman, a security bond was executed by the petitioner in favour of the Federation. As per the respondent-Federation, the work and conduct of the petitioner was unsatisfactory during the entire period of his service i.e. w.e.f. 1986 to 1997. On 3.03.1990, the petitioner had embezzled a sum of Rs.13,566.35 paisa and in the subsequent years, i.e. on 31.03.1992, 31.03.1993, 31.03.1994, 21.02.1995, 31.03.2004, 14.01.2005, 15.02.2005, 14.10.2005, 03.11.2005 and 20.03.2005, he embezzled Rs.72,212.09 paisa of the Federation. Thereafter, he tendered unconditional apologies dated 05.09.1998, 12.08.2003 and 30.09.2004 with respect to his act and conduct. During his cross-examination, the petitioner admitted that the

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affidavits (Ext. RW1/D to Ext. RW1/F in reference petition) were executed by him, the perusal whereof shows that the work and conduct of the petitioner was not satisfactory as he used to remain absent from duty without permission and had also embezzled the substantial amount of the Federation. In the affidavits, the petitioner had categorically undertaken that he would not remain willfully absent in future and would discharge his duties honestly.

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Learned counsel for the petitioner contended that the aforesaid affidavits were obtained by the respondent-Federation from the petitioner under duress. However, no evidence has been led by the petitioner in this respect. No complaint whatsoever was filed by him before any authority with respect to the fact that the said affidavits were got executed from the petitioner under any pressure or duress. Moreover, it is not the case of the petitioner that his services were not regularized as a measure of punishment or victimization. Rather from the perusal of proceedings of the meeting of Board dated 27.10.1995 (Ext. RW1/B in reference petition), it is clear that the name of the petitioner was duly considered for regularization of the services. However, due to the act and conduct of the petitioner and due to the fact that his work was found unsatisfactory, he could not be regularized.

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It is a settled law that no person can claim any service

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benefit or regularization of his services as a matter of right and while promoting a workman or regularizing his services, the criteria to be followed is of ‘merit-cum-seniority’ and not ‘seniority-cummerit’. Since the petitioner had been found guilty of serious misconduct, he cannot claim the regularization from the date when Krishan Chand, junior to him, was regularized. Therefore, the learned writ Court has fallen into error in answering the reference in favour of the petitioner alongwith all other consequential benefits. The award passed by the learned Labour Court, in our considered view, does not suffer from any perversity or illegality.

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In view of the above discussion, the instant appeal is allowed and the impugned order dated 30.08.2019, passed by the learned writ Court is quashed and set aside.

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Pending miscellaneous application(s), if any, shall also stand disposed of.

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(Tarlok Singh Chauhan) Judge

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(Sushil Kukreja) April 01, 2024 Judge

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(VH)

Chairman/Manager, M/S the Kangra District Wholesale Co-Operative Cnsumer and Marketing Fed Ltd. v. Ramesh Chand

Case brief

What is this about?

What did the court decide?

Chairman/Manager, M/S the Kangra District Wholesale Co-Operative Cnsumer and Marketing Fed Ltd. v. Ramesh Chand

Case brief

What is this about?

What did the court decide?

What the court decided

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