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1992 JLJ 461
S.K. Jha, C.J. and D.M. Dharmadhikari, J.
Employers, M/s Anand Cinema v. Mohan Tiwari and another
L.P.A. No. 16 of 1984; against order passed by M.P. High Court in M.P. No.
1464/82 (1986 JLJ 272), for quashing award passed by Labour Court, Jabalpur, in Case No. 19/80/ I.D. Reference; Decided on 1.2.1992.
(2) Industrial Disputes Act, 1947 -- S. 2 (00) -- ‘retrenchment‘ -- every kind of termination excepting by way of punishment, voluntary retirement, nond`renewal of contract of employment or continued ill health -- is retrenchment. AIR 1981 SC 1253 followed. [Para 20
(3) Shops and Establishment Act, 1958 (M.P.) -- S. 58 (i) (unamended) -- Industrial Disputes Act, 1947 -- Ss. 2 (00) and 25 F – expression "otherwise than as a punishment inflicted by way of disciplinary action" used in S. 2 (00) of I.D. Act -- cannot be given restricted meaning -- services terminated for misconduct of employee -- termination would not fall within the definition of ‘retrenchment‘ -- services can be dispensed with under section 58 without holding domestic enquiry. Every kind of termination of service, excepting by way of a punishment imposed, by way of voluntary retirement, as a result of nond`renewal of contract of employment or continued ill health covered by sub-sections (a), (b), (bb) and (c) of section 2 (00) would amount to ‘retrenchment‘, requiring fulfilment of the mandatory condition of payment of retrenchment compensation under section 25F of the Act. The main controversy between the parties centres round the true meaning to be assigned to the expression "otherwise than as a punishment inflicted by way of disciplinary action" used in definition clause in section 2 (00) of the I.D. Act. Bare reading of the definition clause makes it manifest that if the employer takes a disciplinary action against the employee and terminated his services‘ for a misconduct, as measure of punishment, the termination would not fall within the definition of ‘retrenchment‘. AIR 1981 SC 1253 followed. [Paras 20 & 21
A mandatory requirement on the .part of the employer, to hold a domestic enquiry for one of the enumerated misconducts came into force only in the year 1982 when section 58 was re-enacted and substituted for the old one. The employer, at the time when it took the action of termination of services, was within its power to dispense with the services of the employees on the ground that they had committed misconduct. We are not prepared to accept that the action of the employer is to be judged only on the basis of the express terms contained in the order of termination. 1986 JLJ 272 reversed. [Para 22
(4) Industrial Disputes Act, 1947 -- S. 11A -- M.P. Shops and Establishment Act, 1958 -- S. 58 (unamended) -- services of employee terminated for misconduct but no such conduct specifically mentioned in termination order -- employer raising plea of misconduct in written statement -- should be permitted to lead evidence of his plea. AIR 1973 SC 1227 followed. 1980 MPLJ 41 relied on. 1980 MPLJ 471 and 1984 MPLJ 402 distinguished. 1986 JLJ 272 reversed. [Paras 25 to 30
¼1½ nqdku ,oa LFkkiuk vf/kfu;e] 1958 ¼e-iz-½ && /kkjk 58 ¼1½ && iajrqd ¼vla‘kksf/kr½ && e-iz- nqdku ,ao LFkkiuk fu;e] 1959 && fu- 4 && flusek ukV~;x`g ,d LFkkiuk gS && blds deZpkfj;ksa dh lsok,¡ && vf/kfu;e ds v/khu fofu;fer gS && deZpkjh dk fu- 14 ds v/khu vkus okyk vopkj && fu;kstd }kjk mldh lsok,¡] /kkjk 58 ¼1½ && iajrqd ds v/khu mls ,d ekl dk uksfVl fn, fcuk vFkok mlds cnys esa osru dk lank; fd, fcuk] lekIr dh tk ldrh gSA ¿ iSjk 16À
¼2½ vkS|ksfxd fookn vf/kfu;e] 1947 && /kkjk 2¼.k.k½ && *N¡Vuh* & naM] LosPN;k fuo`fÙk] fu;kstu dh lafonk dk vuohdj.k rFkk fujarj cqjs LokLF; ds :i esa ds flok; izR;sd izdkj dh lsok&lekfIr && N¡Vuh gSA , vkb vkj 1981 ,l lh 1253 vuqlfjrA ¿ iSjk 20À
¼3½ nqdku ,oa LFkkiuk vf/kfu;e] 1958 ¼e-iz-½ && /kkjk 58 ¼1½ && ¼vla‘kksf/kr½ && vkS|ksfxd fookn vf/kfu;e] 1947 && /kkjk 2¼.k.k½ rFkk 25p && vkS-fo- vf/kfu;e dh /kkjk 2 ¼.k.k½ esa iz;qDr vfHkO;fDr **vuq‘kkfld dkjZokbZ ds :i esa fn, x, naM dh Hkk¡fr ls vU;Fkk** && dks fucZaf/kr vFkZ ugha fn;k tk ldrk && deZpkjh ds vopkj ds fy, lsok,¡ dh xbZ && lsok&lekfIr *N¡Vuh dh ifjHkk"kk ds varxZr ugha tk,xh && lsok,¡ /kkjk 58 ds v/khu ?kjsyw tk¡p fd, fcuk lekIr dh tk ldrh gSA
/kkjk 2 ¼.k.k½ dh mi/kkjk] ¼d½] ¼[k½ ¼[k[k½ rFkk ¼x½ }kjk vkPNkfnr] naM vf/kjksfir djus ds :i esa] LoPN;k fuo`fÙk ds :i esa] fu;kstu dh lafonk ds vuohdj.k] vFkok fujarj cqjs LokLF; ds flok; izR;sd izdkj dh lsok&lekfIr *N¡Vuh* ds lerqY; gksxh ftlds fy, vf/kfu;e dh /kkjk 25p ds v/khu N¡Vuh izfrdj dk vkKkid fuca/ku dk;kZfUor djuk visf{kr gSA
i{kdkjksa ds chp eq[; lafookn vkS-fo- vf/kfu;e dh /kkjk ¼2.k.k½ esa ifjHkk"kk [kaM esa iz;qDr vfHkO;fDr **vuq‘kkfld dkjZokbZ ds :i esa fn, x, naM dh Hkk¡fr ls vU;Fkk** dks lgh vFkZ fn, tkus ds pkjksa vkSj dsafnzr gSA ifjHkk"kk [kaM ds ikB ek= ls ;g Li"V gS fd ;fn fu;kstd deZpkjh ds fo#) vuq‘kklfud dkjZokbZ djrk gS vkSj naM ds lk/ku ds :i es fdlh vopkj ds fy, mldh lsok,¡ lekIr djrk gS] og lsok&lekfIr *N¡Vuh* dh ifjHkk"kk ds varxZr ugha vk,xhA , vkb vkj 1951 ,l lh 1253 vuqlfjrA ¿ iSjk 20 ,oa 21À
izxf.kr vopkjks esa ls fdlh ds fy, fu;kstd dh vksj ls ?kjsyw tk¡p djus dh vkKkid vis[kk dsoy o"kZ 1982 esa izoRr gqbZ gS tc /kkjk 58 iqu% vf/kfu;fer gqbZ vkSj iqjkuh ds LFkku ij izfrLFkkfir gqbZA fu;kstd us ftl le; lsok&lekfIr dh dkjZokbZ dh] bl vk/kkj ij fd mUgksusa vopkj fd;k gS] deZpkfj;ksa vopkj fd;k gS] deZpkfj;ksa dh lsok lekIr djuk mldh ‘kfDr esa FkkA fu;kstd dh dkjZokbZ dk fu.kZ; dsoy lsok&lekfIr ds vkns‘k esa varfoZ"V vfHkO;Dr ‘‘kCnksa ds vk/kkj ij fd;k tkuk Lohdkj djus ds fy, ge rS;kj ugha gSA 1986 ts ,y ts 272 myVk x;kA ¿ iSjk 22À
¼4½ vkS|ksfxd fookn vf/kfu;e] 1947 && /kkjk 11 d && e-iz- nqdku ,ao LFkkiuk vf/kfu;e] 1958 && /kkjk 58¼vla‘kksf/kr½ && deZpkjh dh lsok,¡ vopkj fd dkj.k lekIr dh xbZ fdarq lsok&lekfIr ds vkns‘k esa ,sls fdlh vkpj.k dk fofufnZ"Vr% mYys[k ugha fd;k x;k && fu;kstd }kjk fyf[kr dFku esa vopkj dk vfHkokd~ && vius vfHkokd~ dk lk{; nsus ds fy, vuqKkr fd;k tkuk pkfg,A , vkb vkj 1973 ,l lh 1227 vuqlfjrA 1980 ,e ih ,y ts 41 voyafcrA 1980 ,e ih ,y ts 417 rFkk 1984 ,e ih ,y ts 402 izHksfnrA 1986 ts ,y ts 272 myVk x;kA ¿ iSjk 25 ls 30À
D.M. Dhannadhikari, J. -- 1. A common order is passed in this appeal and the connected Letters Patent Appeals No. 21 and 22 of 1984, in which the employer is common although the employees are different and common question of law and fact arise. The three Letters Patent Appeals have been preferred . against the order of the learned Single Judge dated 26.9.1984, passed in Misc. Petitions No.1964, 1965 and 1463 of 1982, Employers in Relation to M/s Anand Cinema, Jabalpur v. Mohan Tiwari & others 1986 JLJ 272 = 1985 MPLJ 765 dismissing the above three Writ Petitions filed by the employer, in the cases of the three employees.
2. The learned Single Judge. up-held the award dated 22.10.1982 of the Labour Court passed in common in the cases of the three employees whereby the action of the employer of terminating the services of the employees was held to because of illegal 'retrenchment' hence was ab initio void and the employees entitled to re-instatement in service with full back wages.
3. In the three L.P.As. common questions of law which arise for decision can be formulated as under :-
"Whether an employer who has terminated the services of its employee by an order of termination simpliciter can be permitted when its action is challenged in the Labour Court, to lead evidence in support of its action to prove that the termination was in fact made on the basis of alleged misconduct committed by the employee and/or whether such action of the employer is an act of illegal 'retrenchment' within the meaning of Section 2 (00) of the Industrial Disputes Act and is null and void due to the non- compliance of mandatory pre-condition of payment of retrenchment compensation under Section 25-F of the Industrial Disputes Act; hence the employee can claim no opportunity to prove the misconduct of the employees, in the Labour Court. "
4. The only facts necessary for deciding the appeals are that the employer runs a cinema in the name of Anand Cinema at Jabalpur. All the three employees in the three appeals were working as Gate keepers. In L.P.A. No. 16/84 concerning the employee Mohan Tiwari, prior to his termination from service a domestic enquiry for mis-conduct was held against him but the action on it was kept in abeyance. In the case of Kailash Singh Chouhan (L.P. A. No. 21184) and Pratap Yadav (L.P. A. No. 22/84), domestic enquiry was contemplated but the action was said to have been dropped, to give them opportunity to improve. The• employer's case, as contained in its statement of claim before the Labour Court against Mohan Tiwari, was that right from the date of his employment, his conduct and behaviour was disorderly and rowdy. On 2.12.1978 in an intoxicated state he misbehaved with members of public and the management staff of the cinema. A police report was lodged and the concerned employee was prosecuted and fined by the Magistrate under Section 294 of the I.P.C. On 15.1.1979 a charge-sheet was issued against him and enquiry officer was also appointed. The charges related to his disorderly conduct in insulting the Manager and the partners of Anand Cinema. Inspite of service of charge-sheet, the employee remained absent and an ex-parte enquiry was required to be held. The enquiry officer submitted a report against him. The employer, however, kept the action pending with a view to watch if there was any improvement in the conduct and behaviour of the employee. On 14.9.1979 the employee went on an illegal strike and tried to disrupt the smooth working of the employer. The employer, therefore, issued the order of termination keeping in view his immediate past and previous conducts which were partly enquired into. In the statement of claims itself, the employer requested for an opportunity to prove the misconduct in the Court.
5. The misconduct attributed against the other two employees, namely, Kailash Singh and Pratap Yadav, as mentioned in the statement of claims filed by the employer in the Labour Court, are some what similar in nat
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