# Kribhco Fertilisers Limited v. Oswal Chemicals and Fertilisers Ltd. & Anr

- **Citation:** (2019) 2 ILRA 1756
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-09
- **Case number:** Writ C No. 6200 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kribhco-fertilisers-limited-v-oswal-chemicals-and-fertilisers-ltd-anr-44666
- **Pages:** 30

## Headnote

A. Service Law - No evidence recorded by
the employers - Employer has power to
dismiss employee without enquiry in
certain cases under special procedure
under
the
standing
orders
-
no
justification to hold it incumbent upon
the employer to hold a disciplinary
enquiry
before
imposing
major
punishment - Labour Court did not opine
whether power under the said clause
was rightfully exercised.

Writ Petition allowed (E-9)

List of Cases Cited: -

## Text

_Characters 0–39,911 of 101,945. This is a partial read: ask again with offset=39911 for what follows._

1756 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1947 is not supported from the
records and the same being contrary to the
material evidence which is available on
record the finding cannot be legally
sustained.
The
respondent-workman
having not been able to prove the factum
of his continuous service he was not
entitled to benefit of the protection of
Section 6N of the U.P. Industrial Disputes
Act, 1947 and to the reliefs which have
been granted by the Labour Court.

32. The award of the Labour Court
is thus legally unsustainable and is
accordingly set aside.

33. The writ petition is allowed in
the aforesaid terms.
----------

(2019)10ILR A 1756

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2019

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ C No. 6200 of 2019

Kribhco Fertilisers Limited ...Petitioner
Versus
Oswal Chemicals and Fertilisers Ltd.
& Anr. ...Respondents

Counsel for the Petitioner:
Sri Bhanu Bhushan Jauhari.

Counsel for the Respondents:
C.S.C., Sri Ajit Kumar Singh Chauhan, Sri
Bhupendra Nath Singh.

A. Service Law - No evidence recorded by
the employers - Employer has power to
dismiss employee without enquiry in
certain cases under special procedure
under
the
standing
orders
-
no
justification to hold it incumbent upon
the employer to hold a disciplinary
enquiry
before
imposing
major
punishment - Labour Court did not opine
whether power under the said clause
was rightfully exercised.

Writ Petition allowed (E-9)

List of Cases Cited: -

1. Mangal Sen Vs St. of U.P. & anr., (1990) 60
FLR 161 (All)

2. Management of Delhi Transport Corp., New
Delhi Vs Ram Kumar & anr., 1982 LAB. I.C.
1378

3. St. of U.P. Vs Ganesh Kumar & anr., 2011
(131) FLR 200

4. Daya Chand -1 Vs National Thermal Power
Station, 2004(75) DRJ 486

5. Deputy General Manager (SME) & anr. Vs
The Presiding Officer, Central Govt. Industrial
Tribunal-cum-Labour Court, Chennai, 2014
SCC OnLine Mad 9311

6. M/s Firestone Tyre & Rubber Co. of India
(P.) Ltd. Vs Management & ors., (1973) 1 SCC
813,

7. Amar Chakravarty Vs Maruti Suzuki (I) Ltd.
(2010) 14 SCC 471

8. Shamsher Singh Vs Pepsu Road Transport
Corporation & anr., 2001 SCC OnLine P&H
1055: (2002) 3 SLR 144

9. St. of M.P. Vs Parvez Khan, (2015) 2 SCC
591

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner, Kribhco Fertilizers
Limited, have impugned an award of the
Labour Court, U.P., Bareilly, dated
2 All. Kribhco Fertilisers Limited Vs Oswal Chemicals and Fertilisers Ltd & Anr.
1757
06.09.2018 (published on 22.12.2018) in
Adjudication Case no.21 of 2017. By the
award aforesaid, the Labour Court has
held dismissal from service of eight
workmen of the petitioner to be unlawful
and
illegal,
and
ordered
their
reinstatement in services with full backwages.
The
eight
workmen
were
dismissed by orders of different dates
passed by the petitioner in exercise of
powers under Clause 45.0.0 of the Oswal
Chemical
and
Fertilizers
Limited,
Standing Orders. These Standing Orders
have been certified by the competent
authority,
under
the
Industrial
Employment
(Standing
Orders)
Act,
1946. The aforesaid Standing Orders shall
be hereinafter referred to as the Standing
Orders.
The
eight
workmen
were
dismissed by the petitioner without
holding inquiry by invoking the Special
Procedure in Certain Cases, provided for
under Clause 45.0.0 of the Standing
Orders. The workmen, who have been
dismissed from service, were represented
before the Labour Court by the first
respondent, Union through their General
Secretary, J.B. Singh, who is also one of
the dismised workmen. Before this Court
also, therefore, the eight workmen have
been impleaded through the Employees'
Union, called Oswal Chemicals and
Fertilizers Limited Karmchari Sangh.

2. It would be appropriate to depict
in
tabular
form
the
particulars
of
workmen, who have been dismissed by
orders of different dates. The dates of the
relative orders of dismissal are also
shown. The eight workmen of the
petitioner whose interest before this Court
is represented by the first respondent,
Union, are hereinafter referred to as the
''workmen' wherever the reference is
collective; individually, they would be
referred to by their names. These
particulars are depicted thus:
Sr.
No
.
Name of the
Workmen

Designati
on
Date
of
Dismissal
from
Service
Date
of
Birth
1.
J.B. Singh
Assistant
(Secretar
y
of
Union)
10.06.20
09

13.08.197
0
2.
Shamsher
Chand
Security
Guard
18.06.20
09
02.05.195
8
3.
Rakesh Mishra
Security
Guard
27.06.20
09
10.03.197
0
4.
Radhey Shyam Security
Guard
26.06.20
09
10.11.195
4

5.
Jang
Bahadur
Yadav

Security
Guard
16.06.20
09

02.11.197
2
6.
Vijay
Prakash
Shukla
Security
Guard
26.06.20
09
10.01.195
8
7.
V.K. Rajpoot
Fireman
16.06.20
09
15.10.197
2
8.
Sushil
Kumar
Mishra
Fireman
27.06.20
09
10.02.197
8

3. The record shows that suo motu
action was taken by the State Government
to make a reference of an industrial
dispute on 10.06.2010, in exercise of
powers under Section 4 of the U.P.
Industrial Disputes Act, 1947 (for short,
the Act), relating to the aforesaid
dismissal of the petitioner's workmen. The
reference aforesaid was made to the
Labour Court, Rampur, where it was
registered as Adjudication Case no.32 of
2010. The reference was made in the
following terms (in Hindi vernacular):

"क्ा ेवायोिक द्वारा अपने श्रजमक
श्री ििंग बहादुर यादव पुत्र श्री राम नरेश यादव
को जदनािंक 16.6.2009, श्री बी०पी० शुक्ला पुत्र
श्री ब्रह्मदत्त शुक्ला को जदनािंक 26.6.09, श्री
राधेश्याम ज िंह पुत्र श्री एम०पी० ज िंह को
जदनािंक 24.5.09, श्री राकेश जमश्रा पुत्र श्री
1758 INDIAN LAW REPORTS ALLAHABAD SERIES
आर०के० जमश्रा को जदनािंक 27.5.09, श्री
िे०बी० ज िंह पुत्र श्री बी०के० ज िंह को जदनािंक
10.6.09, श्री शमशेर ज िंह पुत्र श्री दीवान चन्द्र
को जदनािंक 16.6.09, श्री ुशील कुमार जमश्रा
पुत्र श्री ूरिपाल को जदनािंक 27.6.09 तथा श्री
वी०के० रािपूत पुत्र श्री होती लाल रािपूत की
जदनािंक 16.6.2009 े ेवायें माप्त जकया
िाना उजचत एविं वैधाजनक है। यजद नहीिं तो
 म्बल्दन्धत श्रजमकगण क्ा जवतनाम / अनुतोर्
पाने का अजधकारी है, एविं अन्य जकन जववरणोिं
 जहत।"

4. Summons were issued on
17.07.2010 to both parties. It may be
emphasized here again that before the
Labour
Court,
the
workmen
were
represented by the first respondent,
Union, whose name also figures in the
reference order as one party to the
industrial
dispute.
The
course
of
proceedings taken in this case also
indicate that much later the case was
transferred from the Labour Court,
Rampur to the Labour Court, Bareilly
under a Government Order 29.08.2017. It
was registered afresh before the Labour
Court, U.P., Bareilly as Adjudication
Case no.21 of 2017.

5. Something needs to be said about
the identity of the petitioner also.
According to the petitioners' case, the
petitioners who are a Company duly
incorporated under the provisions of the
Companies Act, 1956, were incorporated
as
M/s.
Kribhco
Shyam
Fertilizers
Limited. By that name, the Company was
incorporated on 08.12.2005. It is engaged
in
the
manufacturing
of
Chemical
Fertilizers and Agro Products. The said
company has its unit, a Urea & Ammonia
Manufacturing Plant at Village Pipraula,
District Shahjahanpur. The aforesaid
company was incorporated with the
Registrar of Companies for the National
Capital Territory of Delhi and Haryana.
Subsequently, the name of Kribhco
Shyam Fertilizers Limited was altered to
Kribhco Fertilizers Limited. The aforesaid
change was brought about with the issue
of a certificate of incorporation dated 3rd
June, 2017, issued in terms of Rule 29 of
the Companies (Incorporation) Rules,
2014. It is, thus, the renamed company
aforesaid, and incorporated afresh by that
name, who are the petitioners. It also
requires mention that another company,
Bindal Agro Chemical Limited, was a
company duly incorporated under the
provisions of the Companies Act, 1956.
The
company
last
mentioned
was
incorporated in the year 1981. It was
engaged in the manufacture of chemicals
fertilizers
and
agro
products.
This
company, that is to say, Bindal Agro
Chemical Limited had its Urea and
Ammonia Manufacturing Plant at Village
Pipraula, District Shahjahanpur. This
plant has since been purchased by the
petitioner. Bindal Agro Chemical Limited
changed name to Oswal Chemicals and
Fertilizers Limited, in the year 1995, as
the petitioners assert. The petitioners
further assert that the employees of Oswal
Chemicals and Fertilizers Limited formed
an Employees' Union in the name of
Oswal Chemicals and Fertilizers Limited
Karmchari Sangh, District Shahjahanpur.
After the petitioners purchased the Urea
and Ammonia Manufacturing Plant from
the erstwhile Bindal Agro Chemical
Limited,
on
14.08.2006,
through
a
registered sale deed, the Oswal Chemicals
and Fertilizers Limited Karmchari Sangh,
District Shahajahanpur, became privy to
the petitioners. It is the aforesaid
Employees' Union who are espousing the
cause of the eight workmen who are their
2 All. Kribhco Fertilisers Limited Vs Oswal Chemicals and Fertilisers Ltd & Anr.
1759
members, one of them being their General
Secretary. The said Union is impleaded as
respondent no.1 to the petition.

6. Reverting back to the dispute, that
has given rise to proceedings before the
Labour Court, the facts of it all are best
discernible from the rival versions of an
occurrence dated 03/ 04.06.2009, that
took place at the premises of the
petitioners, at about 1.30 a.m., with a
repeat event at 4.30. It is claimed to be an
attack by a mob of the petitioners'
workmen
on
the
premises
of
the
manufacturing plant of the company at
Pipraula, leading to extensive damage of
the company's property. It is also claimed
that in the said attack, the residential
quarters of its officers were attacked by a
riotous mob of employees, led by the
Union leaders, that is to say, the leaders of
the first respondent, including its office
bearers.

7. The rival versions about this
occurrence figure boldly in the two
written statements, that were filed by the
petitioners and the first respondent,
espousing the cause of the workmen. The
details of pleadings and evidence before
the Labour Court filed by both sides
would be described a little later in this
judgment.

8. According to the case of the
workmen,
represented
by
the
first
respondent, as given out in their written
statement is to the effect that the
petitioners
are
a
manufacturing
establishment engaged in the production
of urea and chemical fertilizers. They
employ about 350 workmen. The first
respondent are an Employees' Union, who
are active in the establishment of the
petitioners manufacturing plant in order to
safeguard the interest of workmen,
employed there. The first respondentUnion are affiliated to some All India
Organization of Unions, described as the
CITU.

9. It is indicated about the workmen
individually that Jang Bahadur Yadav was
appointed on 04.05.1996 as a Security
Guard, V.P. Shukla was appointed on
25.03.1996 also as a Security Guard;
likewise, Radhey Shyam was appointed
on 08.12.1996 in the same capacity,
Rakesh Mishra was appointed as Security
Guard on 23.12.1995, whereas J.B. Singh
was appointed on 10.04.1997 as a Helper,
Shamsher Chandra was appointed on
10.04.2000, again as a Security Guard;
Susheel
Kumar
was
appointed
on
13.09.2003 as a Fireman, and, V.K.
Rajpoot was also appointed as a Fireman,
on 15.01.1996.

10. It is first respondent's case that
all these workmen were office bearers of
the Union's General Body. They would
espouse from time to time any just cause
of their fellow workmen. It is the further
case of the first respondent that on
account of the activities of the workmen
in raising just demands on behalf of
others, that the petitioner management
harboured malice and ill-will towards
each of them. The petitioners would act
with bias vis-a-vis the workmen, and
would often harass them. It is the first
respondent's
further
case
that
the
petitioner management wanted to run the
establishment
in
an
obdurate
and
tyrannical fashion, and to that end, it is
the petitioners' policy to suppress Union's
activities and penalize their leaders. The
first respondent-Union had raised certain
demands
through
a
letter
dated
04.08.2008, related particularly to casual
1760 INDIAN LAW REPORTS ALLAHABAD SERIES
hands before the petitioners, of which the
District Administration and the Labour
Department had been given information.
The said demands and problems were
pending
consideration
before
the
petitioners, but no action was taken
thereon. In the meanwhile, casual hands
and
those
engaged
through
labour
contractors were not paid wages for a
period as long as three months. On that
account
w.e.f. 29.05.2009,
workmen
undertook a hunger strike for an indefinite
period. The strike was called by casual
hands, and the first respondent, in support
of those demands had staged a dharna.
The
petitioner
management
were
desperate about the picketing workmen.
The petitioner management for the
purpose abating the dharna drafted help of
the civil and police administration. It was
pleaded by the first respondent before the
Labour Court that the Standing Orders
have been framed without the consent of
the workmen or their Union. The first
respondent have castigated the petitioner
management
of
going
against
the
provisions of the Standing Orders, about
which they made an ego issue.

11. It is the first respondent's case
that while the first respondent, Union and
its office bearers were extending their
support to the striking casual hands and
contract labourers, on 03.06.2009 in the
night hours, the civil administration and
the police acting at the behest of the
petitioners, resorted to illegal action
against the striking workmen. They
forcibly removed them from site where
the hunger strike had been organized in
order to bring about a forced dissipation
of that strike. In the same sweep of action,
Sethpal Singh, Bhagwan Singh, J.B.
Singh, V.K. Rajpoot and Jang Bahadur
Yadav, were dismissed from service on
10.06.2009, without serving them with a
show cause notice, or calling for their
explanation, much less holding a domestic
inquiry. Shamsher Chandra, V.P. Shukla,
Radhey Shyam, Rakesh Mishra and
Susheel
Mishra,
had
already
been
suspended. They were dismissed from
service
on
18.06.2009,
26.06.2009,
26.06.2009, 27.06.2009 and 27.06.2009,
in that order, again without holding any
disciplinary inquiry.

12. It has been pleaded on behalf of
the workmen by respondent no.1 that the
motivated nature of the action taken
against them is evident from the fact that
they were dismissed from service on
ground, amongst others, that the workmen
entered the Officers' Colony where they
attacked the Officers of the petitioners.
Lateron, two workmen, Sethpal Singh and
Bhagwan Singh, were reinstated in
service, even though the charges levelled
against the two reinstated workmen and
the workmen are the same. It is pleaded
that this action of the petitioners renders
the punishment awarded to the workmen
void. It is also pleaded that in the charge
sheet, dated 14.03.2009, false charges
have been levelled against J.B. Singh,
who is the General Secretary of the first
respondent-Union. Disciplinary inquiry
on the basis of the charge sheet dated
14.03.2009 also commenced, but early
into the proceedings, the petitioners
realized that they would not be able to
prove the charges. As such, the inquiry
was abandoned. It is also pleaded that
through the various letters issued to the
workmen, they have been arbitrarily
dismissed from service without a proper
order being made, and without holding
any disciplinary inquiry, or calling for
their explanation. The petitioners' action
is, thus, in violation of labour laws. It is
2 All. Kribhco Fertilisers Limited Vs Oswal Chemicals and Fertilisers Ltd & Anr.
1761
also urged by the first respondent that the
show cause notice and the dismissal
orders issued to the workmen carry
charges that are baseless, false and vague.
The entire proceedings taken by the
petitioners
are
in violation of the
principles of natural justice. It is also the
first respondent's case that the petitioners
have misused their authority to dismiss
the workmen, which they did by resort to
breach of faith in the manner that assuring
them of reinstatement, they secured letters
of apology from the workmen, but went
back on the assurance by turning down
their letters of apology. It is also said that
the conduct of the petitioners renders their
action all the more bad, inasmuch as,
similarly
circumstanced
workmen,
Sethpal Singh and Bhagwan Singh, have
been reinstated in service; the workmen
being charged on identical allegations
ought to have been reinstated, likewise. It
is also pleaded that the workmen eversince their dismissal have been jobless
with no source of income.

13. The petitioners on the other hand
put forward their case before the Labour
Court through a written statement bearing
paper no.15A, wherein it is pleaded that
the workmen were employed with the
petitioners. It is said that the services of
the workmen are governed by the certified
Standing Order, that is in force. It is
certified under the Industrial Employment
(Standing Orders) Act, 1946 by the
Additional
Labour
Commissioner,
Bareilly.
The
workmen
have
been
dismissed from service as a measure of
punishment under Clause 45.0.0 (b) and
(c) of the Standing Order. Each of the
workmen were involved in acts of rioting,
damaging
the
company's
property,
entering the residential quarters of the
Officers of the Company, where they
resorted to destruction of property,
abusing the Officers and their family
members. It is pleaded that there is a
prima facie case against the workmen of
causing physical harm to Senior Officers
and their family members. As such, the
company in accordance with Clause
45.0.0 (b) of the certified Standing Orders
did not find it to be a fit case to hold a
disciplinary inquiry. It is pleaded on
behalf
of
the
petitioners
that
on
04.06.2009, the workmen and their
companions congregated at the Gate of
the colony, and did not permit any
Officer/ Employee to proceed to work.
Thereupon, the petitioners called in aid
the District Administration who abated
the obstruction by the workmen and their
companions. It is also the petitioners' case
that this act of the workmen led to a
dreadful situation because in the absence
of Officers and workmen from duty,
consequent upon prevention as aforesaid,
the unattended industrial plant could have
led to any operational disaster.

14. A letter was issued to J.B. Singh
and Bhagwan Singh bearing no.7/2009,
dated 02.06.2009, by which strike by the
employees was announced? The workmen
and
their
companions
caused
an
atmosphere of fear to prevail in the
premises of the industrial plant, on
account of which no man was prepared to
stand witness against them. A First
Information Report was lodged against
the workmen under Sections 147, 149,
336, 344, 452, 427, 504, 506 IPC,
wherein after investigation a charge sheet
was filed before the Chief Judicial
Magistrate, Shahjahanpur by the police. It
was also the petitioners' case before the
Labour Court that the workmen and their
companions
on
a
widespread
scale
misbehaved with the Officers and their
1762 INDIAN LAW REPORTS ALLAHABAD SERIES
family members, that prevented anyone
from testifying against them. This led the
petitioners to form an opinion that it was
not necessary to hold an inquiry against
the workmen, and to proceed against them
under Clause 45.0.0 of the certified
Standing Orders in order to dismiss them
from service as a measure of punishment.
It was also pleaded that under Clause
37.0.0 of the certified Standing Orders,
there is provision for an appeal against
punishments awarded. The workmen
invoked the aforesaid provision and
submitted
a
mercy
appeal
to
the
Managing Director of the petitioners,
wherein J.B. Singh and all the other
workmen admitted their guilt, requesting
reinstatement in service on compassionate
grounds. The Appellate Authority after
considering all relevant aspects of the
matter declined to accept the workmens'
appeal, and affirmed the order of
punishment.

15. Before the Labour Court, the
petitioners and the workmen also filed
their rejoinder statements replying to their
respective
written
statements.
The
respondent-Union
filed
documentary
evidence through a list, paper no.27B(2),
whereas
the
petitioners
filed
their
documents through two lists, papers
nos.23B(1) and 42B(1).

16. The respondent-Union examined
in support of their case J.B. Singh as their
witness. After his deposition-in-chief, he
was thoroughly cross-examined by the
petitioners' authorized representative. On
behalf of the petitioners, one Hitesh
Kulshreshtha and another V.K. Shukla
tendered
their
deposition-in-chief
on
affidavit. These witnesses were crossexamined by the workmens' authorized
representative.

17. The Labour Court while
rendering
the
impugned
award has
elaborately set out the parole evidence of
witnesses on both sides about the
occurrence, in between the paraphrased
version of which, it has considered the
different propositions of law urged on
both sides, together with the authorities
cited. All the various contentions that
have been mentioned by the Labour Court
in the award impugned do not require
attention of record, except those on which
the event before the Labour Court has
turned.

18. The Labour Court proceeded to
its conclusions on the first principal
premise that is admitted to both sides: that
the
petitioners-
employers
before
imposing
the
major
punishment
of
dismissal from service, did not hold any
inquiry into the misconduct imputed to
the workmen. It was held that before
imposing a major punishment, it was
imperative for the petitioners to have
undertaken a domestic inquiry; just asking
the workmen whether they wanted to
apologise and their doing so would not
lead to an inference of guilt. In this
connection, the Labour Court depended
upon an authority of this Court in Mangal
Sen vs. State of U.P. and another1.

19. The contention of the petitioners'
representative before the Labour Court
was that the role of J.B. Singh and the
seven other workmen, who are his
companions, is different from Sethpal
Singh and Bhagwan Singh, because J.B.
Singh was leading the belligerent mob,
wherein the remainder of seven workmen
were supporting him; that is not the case
with Bhagwan Singh and Sethpal Singh.
The Labour Court opined that the
occurrence is one dated 03/04.06.2009, in
2 All. Kribhco Fertilisers Limited Vs Oswal Chemicals and Fertilisers Ltd & Anr.
1763
two events at 1.30 a.m. and 3.15 a.m. In
the said occurrence, all the ten workmen
have a similar role assigned, with
identical allegations against them to found
their orders of dismissal. However,
Sethpal Singh and Bhagwan Singh, who
were involved along with the workmen,
were opined by the Labour Court on a
perusal of the facts on record to bear a
role identical to that of the workmen. It
was held that once the petitioners on
identical charges against Bhagwan Singh
and Sethpal Singh, reinstated them in
service, the eight workmen whose cases
were referred to the Labour Court's
adjudication, present a case on the
petitioners' part of practicing a policy of
hostile discrimination.

20. It was brought to the notice of
the Labour Court, on behalf of the
petitioners that the workmen, along with
the two reinstated, in the criminal
prosecution launched against them, were
convicted by the Additional Chief Judicial
Magistrate, Shahjahanpur vide judgment
and
order
dated
20.10.2014,
and
sentenced to various terms for the
offences found proved. All of them
appealed to the Sessions Judge, where
their
appeal
was
allowed
in
part
upholding the conviction, but modifying
the sentence to a suspended servitude, by
putting the workmen and the two others
reinstated, on probation for a period of
one year to maintain the peace and be of
good behaviour. It was, therefore, urged
on behalf of the petitioners that convicted
workmen could not be reinstated in
service by the petitioners.

21. The Labour Court repelled the
aforesaid contention of the petitioners,
again on the same premise that if the
workmen were convicted offenders, so
were the two reinstated ones, Sethpal
Singh and Bhagwan Singh. The Labour
Court held that there is no provision under
the U.P. Industrial Disputes Act, which
says that a convicted man cannot be
reinstated in service. It was remarked by
the Labour Court that the judgment of
conviction passed by the Criminal Court
would not come to aid of the petitioners,
in resisting reinstatement. The Labour
Court concluded that charges against the
two
reinstated
employees
and
the
workmen were identical. The fact that
Bhagwan Singh and Sethpal Singh were
reinstated whereas the workmen were not,
reflected a policy of discriminatory
treatment by the petitioners. On this
finding, the Labour Court held that the
various dismissal orders passed against
the workmen are not lawful or proper.
The Labour Court further awarded that all
the eight employees are entitled to be
reinstated in service, with continuity and
back-wages.

22. Aggrieved, the present writ
petition has been filed by the petitioners.

23. Heard Sri Bhanu Bhushan
Jauhari, learned counsel for the petitioner
and Sri B.N. Singh, learned counsel for
the respondent-workman.

24. It is argued by Sri B.B. Jauhari,
learned counsel for the petitioners that the
impugned award is bad in law on various
counts, and is liable to be quashed as an
instance of manifestly illegal exercise of
powers by the Labour Court. He submits
that
the
petitioners-Employers
have
exercised their powers to punish under
Clause 45.0.0 of the certified Standing
Orders,
that
postulate
contingencies
where the management can exercise its
disciplinary
jurisdiction
to
punish,
1764 INDIAN LAW REPORTS ALLAHABAD SERIES
without holding a departmental inquiry. It
is urged that the Labour Court has not at
all examined the issue whether the
petitioner-employers
exercised
their
powers on relevant considerations under
Clause 45.0.0 (supra), which the Labour
Court had to test on the basis of evidence,
that was before it, together with all other
record. No finding on the said issue has
been returned by the Labour Court, in the
submission of Sri Jauhari.

25. It has been further submitted that
the action taken by the petitioners to
punish invoking Clause 45.0.0 is one in
keeping with the seriousness of the
misconduct committed by the workmen,
and going by the nature of duties assigned
to them. The fact that for acts of
misconduct, in respect of which the
workmen
were
punished
by
the
petitioners under Clause 45.0.0 led to
their conviction in the criminal trial also,
fortifies the factual foundation, on which
the petitioners have proceeded. It is also
submitted by the learned counsel for the
petitioners that the different treatment
meted out to the two workmen who were
spared punishment of dismissal is evident
from the written statement filed before the
Labour Court, where the nature of the job
of the workmen, and the two who were
not punished, has been detailed to justify
the different treatment. It is submitted by
the learned counsel for the petitioners that
the Labour Court went broadly by the fact
that charges against the two workmen
who were spared punishment and the
workmen were identical, and that all of
them were convicted by the Criminal
Court. The inference of discriminatory
treatment drawn by the Labour Court has
missed out on considerations that were
differential in the case of the workmen
and the two, who have not been punished.

26. It is pointed out that the
workmen who have been dismissed are
security personnel and firemen, except
J.B. Singh, whereas the two spared are
assistants, who are office hands. It is
pointed out further that the Labour Court
has also not considered the fact that of the
eight workmen, three, that is to say,
Shamsher Chandra, Radhey Shyam and
Vijay
Prakash
Shukla,
had
already
reached the age of superannuation. Details
of each of the workmen were available to
the Labour Court, in the same manner as
mentioned in paragraph 14 of the Writ
Petition. The Labour Court without
application of mind to these facts with
reference to three of the workmen, has
awarded reinstatement with full backwages.

27. It is also argued by Sri Jauhari
that the impugned award made by the
Labour Court is beyond the scope of
reference, inasmuch as, in the reference
made, there is absolutely no mention of
the fact that reinstatement of the two
workmen for the same misconduct, shows
discrimination by the petitioners against
the workmen. It is urged that unless there
was reference in specific terms relating to
practice of discrimination, it was not open
to the Labour Court to hold dismissal of
the workmen unlawful, on the said
ground. It is also submitted by the learned
counsel for the petitioners that there was a
total breakdown of command and control
on the date of occurrence, inasmuch as,
security personnel and firemen took the
law in their own hands by acts of
intimidation,
violence
leading
to
destruction of property, acts threatening
superior officers, their family members
and loyal workmen of the petitioners with
bodily injury. In those circumstances, it
cannot be said that the power under
2 All. Kribhco Fertilisers Limited Vs Oswal Chemicals and Fertilisers Ltd & Anr.
1765
Clause 45.0.0 was arbitrarily exercised.
He has emphasized that discipline is of
prime concern to security personnel, as
well as personnel in the fire department.
The workmen, however, charged with
those
vital
responsibilities
grossly
misconducted themselves by indulging in
acts of violence and destruction, which
imminently deserved invocation of Clause
45.0.0 of the Standing Orders. In the
circumstances
obtaining
that
were
writlarge on the evidence before the
Labour Court, it has concluded in
manifest error, that the petitioners ought
to have conducted an inquiry before
punishing the workmen.

28. It is also highlighted by Sri
Jauhari that even if for argument's sake it
is presumed that the power to punish with
dismissal from service, dispensing with
inquiry was invoked in error by resort to
Clause 45.0.0 (supra), the Labour Court
while rendering the impugned award
failed to apply its mind to the fact that the
workmen have been convicted for the
same acts, in a duly constituted criminal
trial. It has failed to apply mind to the fact
that such convicted workmen were not fit
to be reinstated in service; and certainly
not with full back-wages. Sri Jauhari has
castigated the award of the Labour Court
on account of non-consideration of the
confirmed conviction of the workmen,
while ordering reinstatement with full
back-wages as unjustified, arbitrary and
illegal. He has further impressed upon this
Court that no employer can be forced to
reinstate workmen who have been found
guilty of offences punishable under
Sections 452, 147, 336, 341, 427 and 506
IPC, by a Court of criminal jurisdiction.
Taking his submission further on the
issue, he urges that these offences involve
model turpitude. Men convict of these
offences cannot be permitted to work in
an industrial establishment. He has argued
further that merely because two other
convicted men were reinstated, one of
whom is still continuing in service, no
relief on the basis of "equality before law"
could be granted to the workmen. He has
emphasized that the time tested principle
is that parity cannot be drawn from a
wrong. The reinstatement of the two other
workmen, who were also subsequently
convicted along with the workmen, might
be a wrong decision of the petitioners, but
that would not entitle the workmen to
claim relief pleading it as discrimination.

29. Sri B.N. Singh, learned counsel
appearing on behalf of respondent no.1
espousing the workmens' cause has
submitted
that
the
workmen
were
dismissed without conducting a domestic
inquiry as provided vide Clause 32a.0.0,
and, particularly, Clause 35.0.0 of the
Certified Standing Orders. Clause 35.0.0
last mentioned, provides a complete
procedure
for
the
imposition
of
punishment that is a major penalty. The
entire procedure according to Sri B.N.
Singh has been given a goby, without
valid cause or justification. It is urged that
Clause 33.0.0 carries a list of acts and
omissions numbering 113, that would
constitute misconduct, in respect of which
disciplinary proceedings may be drawn.
There is a complete mechanism for the
petitioners to deal with any of those
enumerated acts or omissions constituting
misconduct, in accordance with Clauses
35.0.0 to 35.7.0, all of which have been
arbitrarily ignored to impose a major
punishment. It is urged by the learned
counsel for the first respondent that there
was a continuing agitation to take back
the workmen in service, of which the
State Government took cognizance, in
1766 INDIAN LAW REPORTS ALLAHABAD SERIES
order to maintain industrial peace and
avoid industrial unrest, once negotiation
between the employers and workmen had
failed. It was to remedy the aforesaid
situation that the Government referred the
matter as an industrial dispute to the
Labour Court, Rampur, which lateron
came to be transferred to the Labour
Court at Bareilly.

30. Sri B.N. Singh, learned counsel
for the first respondent submits that the
Labour Court went into evidence, both oral
and documentary, led on behalf of parties
and returned a finding that two similarly
circumstanced workmen, Sethpal Singh and
Bhagwan Singh were reinstated by the
petitioners, without assigning any special
reasons or peculiar circumstances to do so,
whereas the workmen were not. It was,
therefore, held by the Labour Court that the
workmen were discriminated against. It was
also recorded that ten workmen were put on
trial for the same acts of misconduct, and all
ten were convicted and sentenced to various
terms by the learned Additional Chief
Judicial Magistrate, Shahjahanpur. On
appeal filed by the ten workmen to the
Sessions Judge, sentence of imprisonment
was modified and all of them were released
on probation of good conduct for a period
of one year. It is emphasized by the learned
counsel that this aspect has been considered
by the Labour Court at pages 33 and 34 of
the paper book, carrying the impugned
award. The fact that the Labour Court has
considered this aspect has not been disputed
by the petitioners, or shown to be incorrect
and based on no evidence. It is, therefore, in
the submission of the learned counsel, a
finding of fact based on evidence that
cannot be disturbed by this Court.

31. It is pointed out that in
paragraphs 7, 9, 11, 12, 13, 15, 17 and 19
of the counter affidavit, correct facts have
been detailed relating to the incident, that
have not been denied in the rejoinder. It
is, in addition, urged on behalf of
respondent no.1 that the writ petition is
not maintainable, as the eight affected
workmen who are beneficiaries of the
award, have not been impleaded as party
respondents to the writ petition. They are
necessary parties. In their absence, the
writ petition is bad for non-joinder of
necessary parties. It has been emphasized
much by Sri B.N. Singh, that in paragraph
9 of the counter affidavit, it has been
specifically asserted that Sri V.K. Shukla
and Sri A.K. Dixit, who were officials of
the company, were not residing in the
factory premises, but living in the colony
at a distance 1 - 2 kilometers. If any
incident took place in the colony, away
from the precincts or the premises of the
factory, it would be an incident outside
the place of work, which could not be
taken cognizance of as misconduct under
the Certified Standing Order. Thus, the
hasty action of the management in
dismissing the workmen from service,
citing an incident that took place outside
the factory premises is ultra vires the
authority of the management under the
Certified Standing Orders. The entire
action is mala fide, and amounts to
victimization of the workmen. It has been
asserted in paragraphs 11 and 12 of the
counter affidavit that the petitioneremployers had entered into an agreement
with the daily-wages workmens' Union,
which was not abided by, by the
petitioners. The daily-wages workmen
Union and its members were demanding
implementation of that agreement, by the
Employers.
Respondent
no.1
had
extended support to their cause. It is on
that account alone, that the Employers
have falsely implicated the workmen, who
2 All. Kribhco Fertilisers Limited Vs Oswal Chemicals and Fertilisers Ltd & Anr.
1767
are members of the Union, in a false
criminal case. It is for the same reason
that without any opportunity of hearing,
they have dismissed the workmen on
different dates, invoking Clause 45.0.0 of
the Standing Orders. In doing so, they
have acted in violation of Articles 14 and
21 of the Constitution.

32. It is also urged on behalf of
respondent no.1 that in para 14 ''Ka' ''Kha'
of the written statement filed by the
respondent-Union (at pages 121 and 123
of the writ petition) it is categorically
stated that the workmen concerned,
Shamsher Singh, V.P. Shukla, Radhey
Shyam Singh, Rakesh Kumar Mishra and
Susheel Kumar Mishra, were suspended
and charge-sheeted by the petitioners after
the incident, whereas the other five
workmen, including Sethpal Singh and
Bhagwan Singh, were not suspended or
charge-sheeted ever. However, orders of
dismissal from service were passed
against each of them. These workmen
were allowed to discharge their duties, till
the order of dismissal from service came
to be made and received salary for the
said period of time. It is urged that in
meting out this differential treatment, the
petitioners' act constitutes unfair labour
practice as defined under Section 2(ra)
read with Schedule V, Paras 5(a), (b), (c),
(d), (g) of the Industrial Disputes Act,
1947.

33. It is also urged on behalf of
respondent no.1 that resort to unfair
labour practice has been prohibited under
Section 25U, and made punishable under
Section 25T of the Industrial Disputes
Act, 1947. The action of the Employers in
suspending and charge sheeting five
workmen, while differentially treating
five others, who were not disturbed till
orders dismissing them from service were
passed, besides the act of the petitioners
in reinstating Sethpal Singh and Bhagwan
Singh, constitutes unfair labour practice
on
the
foot
of
the
discrimination
practiced. It is argued as a facet of this
submission that Sethpal Singh is an ExPresident of the Union whereas Bhagwan
Singh, is the President of the first
respondent, Union, in office. There was,
thus, no reason to distinguish the case of
the workmen, in particular, respondent
no.1, who is the General Secretary of that
Union, and Bhagwan Singh. The fact that
a differential treatment has been meted
out, constitutes unfair labour practice, as
defined in para 9 of Schedule 9 to the
Industrial Disputes Act. It is submitted
that discrimination for a fact has been
held to have been practiced by the Labour
Court on the basis of a conclusion, that is
drawn from relevant evidence. The said
finding is in no way perverse, but
plausible. As such, it calls for no
interference by this Court in exercise of
jurisdiction under Article 226 of the
Constitution. It has been argued further by
Sri B.N. Singh, that the Employers have
not produced any oral evidence to prove
charges before the Labour Court, which
was an opportunity available to them to
substantiate
the
misconduct
claimed
against the workmen. This the petitioners
ought to have done, as they have
dismissed the workmen from service for
acts constituting alleged misconduct,
without holding a domestic inquiry. They
could, by leading evidence in support of
the charges, substantiate the same before
the Labour Court.