# Khayumsab v. Kumar and others AIR

- **Citation:** (2007) 1 ILRA 104
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-28
- **Case number:** Civil Misc. Writ Petition No. 11207 of 1999
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khayumsab-v-kumar-and-others-air-40728
- **Pages:** 6

## Headnote

Industrial Dispute Act, 1947-Section 11A-Power of Labour Court-interference
with-punishment of dismissal-awarded
on the ground of serious misconduct-not
open for Labour court or the Tribunal to
interfere with such discretion exercised
by the employer-not justified.

Held: Para 17 & 18

In the case in hand the duty of the
workman concerned was to protect the
revenue of the Corporation by checking
that no passenger is traveling in the bus
without ticket and to issue tickets by
collecting fair from the person traveling
in the bus without ticket. He admittedly
failed in his duty when out of 50
passengers, 24 were found traveling
without ticket. The workman-conductor
1 All] U.P.S.R.T.C., Jhansi V. Smt. Meena Kumari Dixit and another
105
of
the
bus
engaged
in
financial
transactions, was acting in fiduciary
capacity and was expected to show
highest degree of integrity and trustworthiness. He failed to satisfy the same.
In the circumstances merely for the
reasons that in the past no such
misconduct of the workman came to the
light of the employer, it could not have
been a ground to interfere with the
punishment, since the charge found
proved against the workman itself is
extremely
grave
and
serious.
The
observations of the Apex Court in Hoti
Lal (Supra) are fully applicable to the
facts of this case.

This Court is aware of the circumstances
that during the pendency of the dispute
the workman died and his widow was
pursuing the matter. This aspect has also
influenced the approach of the Labour
Court in interfering with the quantum of
punishment. However, in my view this
approach
would
show
displaced
sympathy for the reasons that the
employer, if found his workman to be
guilty of such a grave and serious
misconduct,
and
decide
to
impose
punishment
of
removal,
for
any
subsequent event, it is not open to the
Labour Court or the Tribunal to interfere
with any such discretion exercised by the
employer since it cannot be said that the
discretion as exercised by the employer
at the time of dismissal was not justified.
Case law discussed:
1998 (3) SCC-192
AIR 2005 SC-1924
2000 (3) SCC-324
2003 (3) SCC-605
2004 (8) SCC-200
AIR 2005 SC-2206
2006 (1) SC-430

## Text

104 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
case may be, by the party or his
pleader not present or not ready as
forwarded.

3. Learned counsel for the petitioner
further submitted that the proviso clearly
indicates that no adjournment shall be
granted more than three times to a party
during the hearing of a suit and submitted
that the word "shall", as indicated in the
proviso,
clearly
indicates,
that
the
provision was mandatory and therefore it
was no longer open to the revisional court
to grant further adjournment, especially,
when adjournment on three previous
occasions had already been taken. The
learned counsel, consequently submitted,
that the order of the revisional court was
wholly illegal and without jurisdiction
and against the teeth of the mandatory
provision provided under Order XVII
Rule 1 C.P.C.

4. In the opinion of the Court, the
submission of the learned counsel for the
petitioner is bereft of merit. The provision
of Order XVII Rule 1 C.P.C. is procedural
in nature and even though the provision is
couched in a negative manner, it does not
mean
that
under
exceptional
circumstances,
the
court
is
not
empowered to grant an adjournment. The
Court has the inherent power to grant an
adjournment in exceptional circumstances
on sufficient reasons being recorded. In
the present case, the revisional court had
rightly granted the adjournment upon
payment o cost of Rs.200/-. The Supreme
Court in Shikh Salim Haji Abdul
Khayumsab v. Kumar and others AIR
2006 SC 396 has held that the provisions
of Order 8 Rule 1 C.P.C. is not mandatory
in nature and that the Court has the
inherent power to grant further time to file
a written statement even after the expiry
of 90 days. The same principle would
squarely apply in Order XVII Rule 1
C.P.C. Consequently, I do not find any
error in the impugned revisional order.
The writ petition fails and is dismissed.

Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2006

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 11207 of 1999

U.P. State Road Transport Corporation,
Jhansi

...Petitioner
Versus
Smt. Meena Kumari Dixit and another

...Respondents

Counsel for the Petitioner:
Sri Vivek Saran
Sri Rahul Anand Gaur

Counsel for the Respondents:
Sri D.N. Dubey
S.C.

Industrial Dispute Act, 1947-Section 11A-Power of Labour Court-interference
with-punishment of dismissal-awarded
on the ground of serious misconduct-not
open for Labour court or the Tribunal to
interfere with such discretion exercised
by the employer-not justified.

Held: Para 17 & 18

In the case in hand the duty of the
workman concerned was to protect the
revenue of the Corporation by checking
that no passenger is traveling in the bus
without ticket and to issue tickets by
collecting fair from the person traveling
in the bus without ticket. He admittedly
failed in his duty when out of 50
passengers, 24 were found traveling
without ticket. The workman-conductor
1 All] U.P.S.R.T.C., Jhansi V. Smt. Meena Kumari Dixit and another
105
of
the
bus
engaged
in
financial
transactions, was acting in fiduciary
capacity and was expected to show
highest degree of integrity and trustworthiness. He failed to satisfy the same.
In the circumstances merely for the
reasons that in the past no such
misconduct of the workman came to the
light of the employer, it could not have
been a ground to interfere with the
punishment, since the charge found
proved against the workman itself is
extremely
grave
and
serious.
The
observations of the Apex Court in Hoti
Lal (Supra) are fully applicable to the
facts of this case.

This Court is aware of the circumstances
that during the pendency of the dispute
the workman died and his widow was
pursuing the matter. This aspect has also
influenced the approach of the Labour
Court in interfering with the quantum of
punishment. However, in my view this
approach
would
show
displaced
sympathy for the reasons that the
employer, if found his workman to be
guilty of such a grave and serious
misconduct,
and
decide
to
impose
punishment
of
removal,
for
any
subsequent event, it is not open to the
Labour Court or the Tribunal to interfere
with any such discretion exercised by the
employer since it cannot be said that the
discretion as exercised by the employer
at the time of dismissal was not justified.
Case law discussed:
1998 (3) SCC-192
AIR 2005 SC-1924
2000 (3) SCC-324
2003 (3) SCC-605
2004 (8) SCC-200
AIR 2005 SC-2206
2006 (1) SC-430

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Shri Rahul Anand Gaur,
learned counsel appearing on behalf of
U.P. State Road Transport Corporation
(hereinafter
referred
to
as
the
Corporation) the petitioner and Shri D.N.
Dubey,
learned
standing
counsel
appearing for contesting respondent no. 1.

2. The writ petition is directed
against the award of the Labour Court
dated 16.7.1988 holding that punishment
of dismissal of the workman (Shri Laxmi
Kant
Dwivedi)
from
the
post
of
Conductor on the charges of carrying
passengers without ticket is harsh and
disproportionate and thereby setting it
aside, it has granted relief of back wages
to the extent of 1⁄4 th of the salary to the
workmen.

3. The brief facts giving rise to the
writ petition are that the workman, late
Laxmi Kant Dwivedi, was appointed as
Ticket Conductor at Mahoba Depot of
Corporation in October 1990. While he
was discharging his duty at bus no.
U.P.93/2349 running between Kanput and
Khajuraho, the aforesaid bus was checked
by Senior Station Incharge, in which 24
passengers out of 50 passengers were
found
traveling
without
ticket.
His
explanation was sought for and thereafter
departmental enquiry was conducted
whereupon the charges were found
proved and by order dated 30.6.1994 he
was
dismissed
from
service.
The
workman raised an industrial dispute,
which was referred for adjudication to the
Presiding Officer, Labour Court, Kanpur
registered as Adjudication case No.297 of
1996. The workman concerned sought to
assail order of punishment on the ground
that no passenger was found without
ticket, enquiry was conducted ex-parte, an
outsider was appointed as Enquiry Officer
and he was not afforded any opportunity
to cross-examine witnesses. When the
proceedings were pending before the
Labour Court, the workman died and
106 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
substituted by respondent no.1 being his
legal heir.

4. The Labour Court after hearing all
the parties held that the charge leveled
against the workman that he was carrying
24 passengers without ticket is proved. He
discarded the defence that the allegations
were leveled against the workman for
extraneous
consideration,
and,
has
recorded a finding of fact that the charge
stands proved. Thereafter, he proceeded
to consider the question of punishment
and considering the fact that the workman
died leaving behind his widow having two
minor children who are facing starvation
on account of non-availability of any
source of earning livelihood, set aside the
punishment
of
'dismissal'
and
has
directed the appellant to pay arrears of
salary to the widow from the date of the
order of the dismissal to the extent of 1/4th
of the arrears of salary.

5. Learned counsel for the employer,
Corporation vehemently contended that
once the charge of serious misconduct of
carrying passengers without ticket was
found proved the Labour Court erred in
law
and
committed
manifest
error
apparent on the face of record by
interfering
with
the
quantum
of
punishment.

6. On the contrary learned counsel
for respondent no. 1 contended that
enquiry was no conducted fairly, the
workman was not afforded opportunity,
there was no material to show that
passengers were traveling without ticket
and the entire finding is perverse.

Heard learned counsel for the parties
and perused the record.

7. From the perusal of record it is
apparent that the Labour Court has
recorded
a
finding
of
fact
that
departmental
proceedings
have
been
conducted against the petitioner workman
giving him due opportunity of defence
and the charges were also found proved.
In this view of the matter it is not
permissible
to
review
such
finding
particularly at the instance of respondent
No. 1 who has not challenged the same.

8. Now coming to the question as to
whether the Labour Court was justified in
setting aside the punishment of removal
on the ground of being harsh, excessive
and non-commensurating to the gravity of
charge, it has to be answered considering
the ambit of power which the Labour
Court have exercised in such matters. It
will be appropriate to have a brief resume
of precedents on the question as to
whether and when it is open to Industrial
Tribunal or Labour Court to interfere with
the quantum of punishment.

9. Under Section 11-A of the
Industrial Disputes Act, 1947 the Labour
Court and Tribunal have been empowered
to set aside the order of discharge or
dismissal where an industrial dispute
relating to the discharge or dismissal
where an industrial dispute relating to the
discharge or dismissal is referred for its
adjudication and
in the course of
adjudication proceedings, it found that the
order of discharge or dismissal is not
justified. The Labour Court and the
Tribunal is also empowered, in such case,
to direct the employer to reinstate the
workman on such terms and conditions as
it deems fit or to give such other relief to
the workman including the award of
lesser punishment in view of discharge or
dismissal.
1 All] U.P.S.R.T.C., Jhansi V. Smt. Meena Kumari Dixit and another
107

10. Sec. 11-A of the Industrial
Disputes Act, 1947 is reproduced as
under:-

11-A.
Powers
of
Labour
Courts,
Tribunals and National Tribunals to give
appropriate relief in case of discharge or
dismissal of workmen-

Where an industrial dispute relating
to the discharge or dismissal of a
workman has been referred to a Labour
Court, Tribunal or National Tribunal for
adjudication and, in the course of the
adjudication proceedings, the Labour
Court, Tribunal or National Tribunal, as
the case may be, is satisfied that the order
of discharge or dismissal was not
justified, it may by its award, 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
workman including the award of any
lesser punishment in lieu of discharge or
dismissal as the circumstances of the case
may require:

Provided that in any proceeding
under this section the Labour Court,
Tribunal or National Tribunal, as the
case may be, shall rely only on the
materials on record and shall not take
any fresh evidence in relation to the
matter."

11. This provision came up for
consideration before a three-Judge Bench
of the Apex Court in Union of India Vs.
B.C. Chaturvedi (1995) 6 SCC 749 and it
was
held
that
interference
on
the
proportion of punishment of penalty is
permissible only when the punishment or
penalty is shockingly disproportionate.

In
Colour-Chem
Ltd.
V.
A.L.
Alspurkar and others (1998) 3 SCC 192
it was held:-

"Consequently, it must be held that
when looking to the nature of charge of
even major misconduct which is found
proved if the punishment of dismissal or
discharge as imposed is found to be
grossly disproportionate in the light of
the nature of the misconduct or the past
record of the employee concerned
involved in the misconduct or is such
which no reasonable employer would
ever impose in like circumstances,
inflicting of such punishment itself could
be treated as legal victimization."

12. In U.P. State Road Transport
Corporation
Vs.
Subhash
Chandra
Sharma & Ors. (2000) 3 SCC 324 the
Court referred to section 11 of Industrial
Disputes Act, 1947 held where the charge
of misconduct found proved against the
workman is serious, the Labour Court is
not justified in interfering with the order
of removal. In the aforesaid case, the
charge against the workman was that he,
in a drunken state, went to the Assistant
Cashier in the Cash room alongwith the
Conductor and demanded money from the
Assistant Cashier. When refused the
workman abused him and threatened to
assault him. The aforesaid charge was
proved but the Labour Court held that the
punishment of removal is not justified and
therefore set aside the same. The Apex
Court disapproving interference of the
Labour Court in the matter of punishment,
observed as under:-

"It was certainly a serious charge of
misconduct against the respondent. In
such circumstances, the Labour Court
was not justified in interfering with the
108 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
order of removal of respondent from the
service when the charge against him
stood proved. Rather, we find that the
discretion exercised by the Labour Court
in the circumstances of the present case
was
capricious
and
arbitrary
and
certainly not justified. It would not be
said that punishment awarded to the
respondent was in any way "shockingly
disproportionate" to the nature of the
charge found proved against him."

13. In Krishnakali Tea Estate Vs.
Akhil Bharatiya Chah Mazdoo Sangh
(2004) 8 SCC 200 it was held that the
punishment of dismissal awarded to the
workman could have been interfered only
if it is disproportionate to the misconduct
proved
by
the
workman
and
not
otherwise.
In
Muriadiah
Colliery
Kamgar
Union
Vs.
Bihar
Collieri
Kamgar Unior AIR 2005 SC 2006
referring to Section 11-A of the Industrial
Dispute Act, 1947. The Apex Court held:-

"It is well established principle in
law that in a given circumstance it is
open to the Industrial Tribunal acting
under Section 11 (A) of the Industrial
Disputes Act, 1947 has jurisdiction to
interfere with the punishment awarded
in the domestic inquiry for good and
valid reasons. If the Tribunal decides to
interfere with such punishment it should
bear
in
mind
the
principle
of
proportionality between the gravity of the
offence and the stringency of the
punishment......."

14. In Hombe Gowda Education
Trust & anr Vs. State of Karnataka and
ors. 2006 (1) SCC 430 the Apex Court
after a review of the entire earlier case
law observed as under:-

"This Court repeatedly has laid
down the law that such interference at
the hands of the Tribunal should be inter
alia on arriving at a finding that no
reasonable person could inflict such
punishment.
The
Tribunal
may
furthermore exercises its jurisdiction
when relevant facts are not taken into
consideration by the Management which
would have direct bearing on the
question of quantum of punishment."

15. In M.P. Electricity Board Vs.
Jagdish Chandra Sharma AIR 2005 SC
1924 the Apex Court observed that the
punishment of termination of service
awarded to a workman found guilty of
breach of discipline cannot be said to be
disproportionate or harsh.

16. In the matter of Transport
Corporation itself where the workman is
found guilty in financial matters, the
Apex Court found that the punishment of
dismissal
or
termination
is
not
disproportionate since such misconduct
should not be dealt with leniently. In
R.M.U.P.S.R.T.C. Etawah & Ors (2003)
3 SCC 605 it was held:-

"It is not only the amount involved,
but the mental set-up, the type of duty
performed
and
similar
relevant
circumstances
which
go
into
the
decision-making
process
while
considering whether the punishment is
proportionate or disproportionate. If the
charged employee holds a post of
trustworthiness and integrity are inbuilt
requirements of functioning, it would not
be proper to dealt with the matter
leniently. Misconduct in such cases has
to be dealt with iron hands. Where the
person deals with public money or is
engaged in financial transactions or acts
1 All] Shaukat Rana V. State of U.P. and another
109
in a fiduciary capacity, the highest
degree of integrity and trustworthiness is
a must and exceptionable. Judge in that
background, conclusions of the Division
Bench of the High Court are not
proper."

17. In the case in hand the duty of
the workman concerned was to protect the
revenue of the Corporation by checking
that no passenger is traveling in the bus
without ticket and to issue tickets by
collecting fair from the person traveling in
the bus without ticket. He admittedly
failed in his duty when out of 50
passengers, 24 were found traveling
without ticket. The workman-conductor
of
the
bus
engaged
in
financial
transactions, was acting in fiduciary
capacity and was expected to show
highest degree of integrity and trustworthiness. He failed to satisfy the same.
In the circumstances merely for the
reasons that in the past no such
misconduct of the workman came to the
light of the employer, it could not have
been a ground to interfere with the
punishment, since the charge found
proved against the workman itself is
extremely
grave
and
serious.
The
observations of the Apex Court in Hoti
Lal (Supra) are fully applicable to the
facts of this case.

18. This Court is aware of the
circumstances that during the pendency of
the dispute the workman died and his
widow was pursuing the matter. This
aspect has also influenced the approach of
the Labour Court in interfering with the
quantum of punishment. However, in my
view this approach would show displaced
sympathy for the reasons that the
employer, if found his workman to be
guilty of such a grave and serious
misconduct,
and
decide
to
impose
punishment
of
removal,
for
any
subsequent event, it is not open to the
Labour Court or the Tribunal to interfere
with any such discretion exercised by the
employer since it cannot be said that the
discretion as exercised by the employer at
the time of dismissal was not justified.

19. In my view therefore, the Labour
Court erred in law in setting aside the
punishment of removal and by directing
for payment of 1/4th of arrears of salary
to the respondent no. 1.

20. In the result, the writ petition
succeeds and is allowed. The award
impugned in the writ petition is set-aside
to the extent it interferes with the
punishment of removal imposed upon the
workman
concerned
and
direct
for
payment of 1/4th arrears of salary to the
respondent. The punishment of removal
as imposed upon the workman is up-held.

Parties shall bear their own costs.
Petition Allowed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.10.2006

BEFORE
THE HON'BLE V.D. CHATURVEDI, J.

Criminal Revision No.1563 of 2004

Shaukat Rana

...Revisionist
Versus
State of U.P. & another...Opposite Parties

Counsel for the Revisionist:
Sri Mohd. Aslam Ansari
Sri Mukhtar Alam

Counsel for the Opposite Parties:
Sri Onkar Singh