Allowed

Malkit Singh v. the Polc Patiala and Ors.

Punjab & Haryana HC1 Feb 2012CWP/5738/1994

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a Labour Court award that denied back wages alongside a major penalty. The court held that an amalgamation of major penalty and denial of back wages is illegal. Consequently, the Labour Court award was modified to grant full back wages for the period the petitioner was kept out of service.

What did the court decide?

The petitioner is held entitled to full back wages for the period from 05.07.1989 to 09.08.1993; interest at 9% p.a. payable on realization.

Malkit Singh Vs the Polc Patiala and… — Labour and Industrial Disputes | Punjab & Haryana HC (2012)

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CWP No.5738 of 1994

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No.5738 of 1994 Date of Decision: 01.02.2012

Malkiat Singh

..... Petitioner

Versus

The Presiding Officer, Labour Court, Patiala and others

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..... Respondents

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CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA

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Present: Mr. Kanwalvir Singh Kang, Advocate, for the petitioner.

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Mr. Balwinder Singh, Advocate, for the respondent-PRTC.

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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RAJIV NARAIN RAINA, J.

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This petition has been filed under Articles 226/227 of the Constitution of India challenging the award of the Labour Court, Patiala dated 30.03.1993 save and limited to the extent that it denies the relief of back wages to the petitioner. The petitioner-workman has not challenged that part of the award in which the Labour Court in exercise of its jurisdiction under Section 11-A of the Industrial Disputes Act, 1947 (for short 'the Act) in its discretion has scaled down the punishment from

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CWP No.5738 of 1994

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termination to reinstatement with continuity of service and stoppage of two annual increments with cumulative effect w.e.f. 05.07.1989.

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In moulding the relief, the Labour Court has in fact awarded two punishments. Firstly, as above and secondly that the workman would not be entitled to the back wages for the period 05.07.1989 to 09.08.1993. It may not be necessary to go into a detailed examination of the facts and suffice it to say that the petitioner/workman was chargesheeted on two grounds. One that he absented from duty for a short period in the morning on 08.02.1988 for about half an hour and left office 35 minutes earlier on the same day. The second charge was that he misbehaved with the Yard Master when he was asked by his superior to explain his absence from duty. The Labour Court inter alia framed the issue as to whether the enquiry had been fair and proper. With regard to the validity of the enquiry, the Labour Court has found that the charge of misbehaviour which was certainly the more serious charge did not stand proved. The respondent-Management has not filed a writ petition challenging the award. Therefore, the award is final qua it. I see no reason to differ with the view expressed by the Labour Court on the charge of misbehaviour as not proved and uphold the same.

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The charge of absence was admitted by the workman himself at the enquiry. In my view, the charge of absence from duty on a single day was too trifling a charge in a span of nine years of service with the management. As the old proverb goes, one swallow does not make a summer.

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I find that non-grant of back wages has been linked by the Labour Court to misconduct and made a part of the punishment. In my view, the

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CWP No.5738 of 1994

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punishment inflicted by the Labour Court under Section 11-A of the Act itself becomes the punishment order as though passed by the disciplinary authority. There is an amalgam of infliction of major penalty clubbed with penalty by way of denying the workman back wages.

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Mr. Balwinder Singh, learned counsel for the respondent-PRTC has not been able to show from the rules of the Pepsu Road Transport Corporation whether denial of back wages can operate as a penalty or is mentioned in the list of penalties, both major and minor, which can be imposed for misconduct. I find that the procedure adopted by the management was for imposition of major penalty. They held regular enquiry which has not been faulted by the Labour Court. The management chose termination as punishment. The Labour Court in exercise of its jurisdiction under Section 11-A of the Act modified the punishment and chose to inflict major punishment of stoppage of increments with cumulative effect in its discretion. It ought not, in my view, to have passed an order which is an amalgam of both major and minor penalty and should have exercised its discretion by choosing one kind of penalty in the scale of punishments.

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In Union of India and another v. S.C. Parashar (2006) 3 SCC 167 , the Supreme Court has examined an amalgamated punishment order of somewhat similar kind imposing both major and minor penalties inflicted by same order and have held that the disciplinary authority acted illegally and without jurisdiction in imposing major and minor penalties by the same order after resorting to procedure for imposition of major penalty. I also find that the Labour Court has not linked denial of back wages with the principle of 'no work no pay' but has made it part of the punishment order, so to

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CWP No.5738 of 1994

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speak. I, therefore, think that Mr. Kanwalvir Singh Kang, learned counsel for the petitioner is justified in arguing that his client could not have been punished twice and, therefore, this part of the punishment order should be separated and set aside on the ground that denial of back wages was without just cause or legal justification and was inflicted by injudicious exercise of discretion. The workman could not be said to be at fault for being kept out of service from 05.07.1989 to 09.08.1993 when he was reinstated as there was no stay order in favour of the management in the present case. The petitioner has been in service since then with the PRTC.

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On the other hand, Mr. Balwinder Singh, learned counsel for the respondent has raised a novel argument that the petitioner at the time of termination was a daily wager and, therefore, could not have been issued an order of punishment of withholding two increments with cumulative effect at all; that it would be incongruous to support such punishment order without there being any security of tenure. This argument of desperation may be attractive but I find that this is not the defence taken by the management before the Labour Court nor in the affidavit of the Managing Director of PRTC before this court dated 13.09.2011 filed with CM No.12853 of 2011 in response to the interim order dated 25.08.2011 on the issue of entering into a compromise proposed by the Lok Adalat. In the affidavit, a decision on merit has been sought and that no compromise can be entered into as proposed by the Lok Adalat which was as follows:-

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“Present: Mr. K.S. Kang, Advocate, for the petitioner.

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Mr. Balwinder Singh, Advocate, for the respondents.

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CWP No.5738 of 1994

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Learned counsel for the respondents state that the M.D./Corporation is not competent to enter into a settlement as proposed earlier by the Lok Adalat though he states that there is no reason and justification for denying the back wages to the workman. Let an affidavit of the M.D. of the Corporation be filed within two weeks explaining under which Rules or instructions the M.D. of the corporation is not empowered to enter into the compromise.

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Adjourned to 14.09.2011."

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The submission of Mr. Balwinder Singh, Advocate that daily wager could not have been inflicted with such punishment at all, deserves to be rejected on the ground that the management has not assailed the impugned award of the Labour Court and secondly, the plea has not been raised either in its pleadings before the Labour Court or at the hearing. New pleas cannot be entertained for the first time before the writ Court in view of the dictum laid down by the Supreme Court in Harjinder Singh v. Punjab State Warehousing Corporation, 2010(3) SCC 192 .

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In the totality of circumstances presented before this Court I am inclined to hold that in the face of infliction of major penalty, denial of back wages could not have been added on as a further penalty and that part of the order of the Labour Court should not be allowed to stand. If back wages become due and payable on the above line of reasoning then the further issue arises as to the quantum of back wages payable or that wages be granted as suggested by the Lok Adalat in its proposed order of 50% back wages or whether the petitioner should have it in full. I feel that once the Labour Court exercising power of the disciplinary authority had denied back wages for the wrong reason then I see no legal principle to reduce the

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CWP No.5738 of 1994

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back wages to say 75%, 50% or 25%. The amalgam of punishments can either stand or not at all. If I were to order 50% back wages, I would be indeed falling in the same trap of imposing partial punishment for the first time in supervisory jurisdiction under Article 226. I therefore, agree with Mr. Kang that this is a fit case where full back wages should be ordered and the award of the Labour Court modified to that extent. There is another reason which persuades me to award full back wages. The punishment order of dismissal/termination has become non-existent with the award of lesser punishment which led to reinstatement. The fresh order of punishment would relate back to the date of dismissal.The petitioner would be deemed to be in service and therefore a priori entitled to wages for the period he was deprived from working or offering his labour.

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Mr. Balwinder Singh, learned counsel for the management confronted by the above line of reasoning has argued that the matter ought to be remanded to the Labour Court for fresh consideration on quantum of punishment. I hesitate to adopt this course at this distance of time. Another reason which restrains me from adopting this course is that the order of punishment was based on wilful absence only for half an hour in the morning and half an hour in the afternoon on a single day in the span of nine years of service and that the punishment was harsh and disproportionate to the misconduct proved.

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For the foregoing reasons this writ petition is allowed. The petitioner is held entitled to full back wages for the period he remained out of service from 05.07.1989 to 09.08.1993. Respondent No.2 is directed to comply with this direction within a period of 4 months from today failing

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CWP No.5738 of 1994

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which interest would run on the amount due @9% p.a. till realization. The award of the Labour Court stands modified accordingly.

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Mr. Balwinder Singh, learned counsel informs me that no more than about Rs.20,000/- would be involved since the salary of the petitioner during the relevant period was Rs.825/- per month.

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(RAJIV NARAIN RAINA) JUDGE

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01.02. 2012 manju

Malkit Singh v. the Polc Patiala and Ors.

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Malkit Singh v. the Polc Patiala and Ors.

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