HIGH COURT OF ORISSA: CUTTACK
PRESENT: THE HONOURABLE KUMARI JUSTICE SANJU PANDA AND THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
Date of hearing and judgment: 28.10.2016
W.P.(C) No.27509 of 2011
In the matter of an application under Articles 226 and 227 of the Constitution of India.
The Branch Manager, Orissa Air Products Pvt. Ltd., Gundichapada …… Petitioner
State of Orissa and another …… Opposite Parties
For Petitioner : M/s B.P.Tripathy, D.Pradhan, G.S.Dass and P.Tripathy; For Opp.Parties : Mr.S.N.Mishra, Additional Government Advocate ( for O.P.No.1) M/s B.Satpathy, B.Baral,T.Lenka, B.Jena and R.C.Kar ( for O.P.No.2)
S.N. Prasad, J.
The award dated 13.4.2011 passed by the Industrial Tribunal, Orissa, Bhubaneswar in Industrial Dispute Case No.124 of 2008 has been challenged by the Management-Branch Manager, Orissa AIR Products Ltd., Gundichapada, Dhenkanal, whereby and where under order of dismissal inflicted by way of punishment by the Management-petitioner against the workman has been substituted by the order of reinstatement in service with 50% of back wages from the date of discharge till the award becomes enforceable and imposed punishment of stoppage of two increments of the workman with cumulative effect.
2. Case of the workman in brief is that he was working as Plant Operator in the factory of the management, while he was performing „C‟ shift duty from 10 P.M. to 6 A.M. he felt acute pain in his left side scrotum for which he was taking rest but without being negligent towards his duty. While he was in rest, the Branch Manager of the factory made a visit and finding him taking rest the Branch Manager thought that he was in deep sleep and for that suspended him from service w.e.f. 28.6.92, followed by charge sheet dated 28.7.92 to which he submitted explanation along with medical report and also begged apology for the alleged incident but the Management, without giving any head to that, has initiated regular domestic enquiry and the charge having been proved in the enquiry punishment of discharge from service has been imposed. The workman, being aggrieved, has raised dispute which ultimately culminated into the reference which has been answered in favour of the workman, which is under challenged by the Management in this writ petition.
3. Case of the management is that on 28.6.92 while the workman was in night duty in the factory premises the General Manager made a round inside the factory at about 4.15 A.M. and found that the workman was sleeping near his work place by arranging chairs, stool, etc. as a shift bed. At that time two Compressors, Nitrogen Blower, Heater, Water Pumps and other machines were running which needed to be watched constantly in order to avoid heavy damage to the machines. The workman, as the Plant Operator, was required to check the machines frequently and to record the pressure, temperature etc. in a log sheet, but he was found in deep sleep making entries in the log sheets in advance. The workman as well as the helper were found asleep. Accordingly, charge has been framed and thereafter the charge having been proved, the management has taken decision to discharge him from service since the management has lost confidence upon him.
4. Heard learned counsel for the parties and perused the documents available on record.
5. In the light of the factual aspects of the parties, Industrial Tribunal has proceeded to answer the following reference.
“Whether the discharge from services of Sri Narayan Chandra Rout, Operator by the management of Orissa Air Products Ltd., Dhenkanal with effect from 4.10.1992 is legal and/or justified If not, to what relief Sri Rout is entitled?”
6. The Industrial Tribunal has formulated following three issues:
(1) Whether the discharge from services of Sri Narayan Chandra Rout, Operator by the Management of Orissa AIR Products Ltd., Dhenkanal with effect from 4.10.92 is legal and/or justified?
(2) If not, to what relief Sri Rout is entitled?
(3) Whether the domestic enquiry has been conducted fairly ?
7. While answering issue no.3 the Industrial Tribunal found that the finding of the domestic enquiry has reached to the conclusion that the domestic enquiry is fair. With respect to the issues nos. 1 and 2 the Industrial Tribunal has gone into the quantum of punishment and thereafter order of dischargte has been substituted by another punishment i.e. stoppage of two increments of the workman with cumulative effect, directed the Management to reinstate the workman in service with 50% of back wages from the date the award becomes enforceable. The Management being aggrieved with the said award is before this Court by way of the writ petition.
8. Ground taken by the Management that the Industrial Tribunal has exceeded its jurisdiction as because the moment the domestic enquiry has been held to be fair, the only course left open to the Industrial Tribunal is to approve the order of punishment, Industrial Tribunal cannot substitute its view from the decision already taken by the Management more particularly in the facts and circumstances of the case where Labour Court/Industrial Tribunal has come to conclusion that the nature of allegations leveled against the workman is serious, at the first instance the order of discharge has been quashed with direction to reinstate the workman in service by inflicting punishment of stoppage of two annual increments with cumulative effect.
9. We before examining the issues thought it proper to discuss the power of jurisdiction of the Industrial Tribunal under
Section 11A of the Industrial Disputes Act, 1947
which confers power of Labour Courts,Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. The Hon‟ble Apex Court has discussed the scope of Section 11A of the Industrial Disputes Act in
Indian Iron and Steel Co. Ltd. v. Workmen, reported in (1958) 1 LLJ 260 (SC)
and has been pleased to observe that while considering the tribunal‟s power to interfere with the management‟s decision to dismiss, discharge or terminate the services of a workman, while doing so the tribunal does not act as a court of appeal and substitute its own judgment for that of the management and that the tribunal will interfere only when there is want of good faith, victimization, unfair labour practice, etc. on the part of the management. Thus the Industrial Tribunal is supposed to interfere with the order of dismissal only when there is want of good faith, victimization, unfair labour practice on the part of the management.
10. Power of judicial review with respect to the punishment imposed upon the delinquent it has been held in the judgment rendered by the Hon‟ble Apex Court in the case of