Bharat Aluminium Co.Ltd. v. Kedarnath Mehta And ORS.

BEFORE THE HON'BLEHIGHCOURTOF CHHATTISGARH ATBILASPUR f3>fe77.

W.P.No:

/2003 '

BharatAluminium Co. Ltd BALCO, Korba, Its General iVianger Dist: Korba (CG) Vs.^ / Petitioner Kedar Natti Mehta S/o: Shri Dev Gharan Mehta, Fitter, Personal No. 02904, Bharat Aluminium Co.Ltd., Baico Nagar, Korba.

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President, Industrial Court, Raipur (CG) ^:>.

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3.

Presiding Officer, Labour Court, Biiaspur ResESndents WRIT PETITION UNDER ARTIGLE 22»SS2T OF THE CONSTntjriON OF 8NDSA FOR GRANT OF MANDAMUS. CERTteiRARI OR©IREGTKM OF1-IKE NATURE.

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fl^ ci^ HIGH COURT OF CHHATTISGARH. BILASPUR SB:HON'BLE SHRI NAVIN SINHA. ACTING CHIEF JUSTICE Writ Petition No. 3677 of 2003 PETITIONER BharatAluminium Co. Ltd.

Versus

RESPONDENTS Kedar Nath Mehta and others WR['LP(j||[AiWNDERARTICLE22^:IBbErffl-l£CONSTITUTION .A!'&A'"

OF INniA *ds:.»W.», iearance :

^sf^^/s-H ys^i-sw sife Petitioner.

tpr Respondent No.1 Shri N.K. Vya^^ Shri Saleem Ka^ij i-^'^^ ^- "'T^, NAVIN SINHA, ACTIM|$:i6% " I?

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1.

Heard Learned Counsel for the Petitioner and Respondent No.1 . 2.

Acharge sheet dated 15.6.1991 was issued to Respondent No.1 on two grounds:

(A) He availed medical benefits for two sons born out of a second marriage solemnized during the subsistence of the first without disclosing the fact; and (B) He had remarried during the subsistence of the first marriage.

The charge alleged violation ofStanding orders no. 29(2) and 29(23). 3.

Learned Counse] for the Petitioner submitted that during the

pendency of the writ petition Respondent No.1 is being paid the last wages drawn under Section 65 (3) of the Madhya Pradesh Industrial Relations Act, 1960. Both charges constituted a misconduct under the Standing orders. The Labour Court dissatisfiedwith the findings arrived at in the departmental proceedings examined the evidence to arrive at a wrong conclusion. 50% back wages was granted mechanically SBII without any finding that Respondent No.1 was not gainfully employed in the interregnuiai]Agg%?tng|heajCi|dpr of the Industrial Court it was furtheiiijIu^ii^?tPfgf a completely^W^'gringifile of law was applied ^iUohce grant of back wages to 100% holdingdaTdyihe onus lay on ie employer to pro^i liaglti^lg^lj.hfluent was not gaiiffylljp'emplo^ tVSS-mV^t-V"^" "~" •^--•-•y in the interregnum.

4-^' ^ 4.

Learned Counsdj Jlapj^^fondqnt No.1 acknowledged that he has reached the agQ,,yw^geiaBftii9tion in 2009. It was denied that he had solemnized a s^g^li.iiiaEBlg®'.

^V^cf vp^ 5.

The facts reveal that Respondent No.1 was dismissed in 1993. In normal course he would have remained in service till 2009.

Standing order 29 (23) provided that the employee could not remarry during the subsistence of the first marriage without permission of the employer.

Standing order 29(2) dealt with fraud and dishonesty with the Company. Under the former it was a misconduct if a second marriage was solemnized by the employee during the subsistence of the first without the permission of the employer. In other words it was permissible with approval and would not constitute a misconduct. We

\^\ are not concerned with the personal laws of the parties. Permission is alleged to be wanting.

6.

It is not the case of the Petitioner that the two children with regard to whom medical benefits were being drawn have not been born to the respondent from the second marriage solemnized without permission under Rule 29(23).

7.

There can be no two opinions that failure to obtain permission SI ^'^ constituted a rQJsKi(|^;|S(M|inlI,^gi|ii,ding Order 29(23). In view of the ^i?g, flteB>"y second marriage w8u»fcjf n,@'B|have constituted a <^^nduct if permission^ig.d, been taken and ft&Sr|N§i,,two children -^(^ fiave been born to.f?ffN?i'ISg®W|BW'?outof this seconB^Warriafle the "-^TfKysKsvy"'"' "•----•-••• question surviving foif.^Ky^g^^n is if the punishment was grossly disproportionate to the rfij|do(|i^jyt alle^ed. /y^^/:

8.

The miscondugt?Sl1e§%;ia@pist Respondent No.1 was not of a gravity and magnituel®fffiBSyhis credibility as an employee •(-tc^^cj amounting to a moral turpitude raising issues for lack of confidence making him unfit to be retained in service. Had he taken permission for the second marriage, irrespective of the Personai Law, it would not have constituted a misconduct. A reasonable view can be taken that it was an irregularity and not an illegality and that post facto sanction could also have been considered.

Considering the nature of misconduct alleged, the Court finds no reason to interfere with the order for reinstatement. The quantification of punishment will have to be considered in view of the subsequent development due to

^> ^ ^ ^/ superannuation in 2009. The Court is unable to uphold the order of the Industrial Court enhancing the back wages to 100% completely reversing jurisprudential principles for grant of back wages by holding it was for the employer to demonstrate that the employee was gainfully employed in the interregnum. On the contrary, the onus lay on the employee to demonstrate that he remained unemployed when the claim for back wages would be considered appropriately. The order of ^-s the Industrial Coyrt tg;thes B^ent,, |tiat it grants 100% back wages is there)uK'i^ll«@SGinTbfsustainaB18''affisyj|!5|etflsjderestoring the 50% ^W?&ges granted by the Labour Court. Let flafcllBgitlmate dues of Ifespondent No.1 b^^^t'tefifall //-<-' ? '€^'

1^^'Et^r adjusting the payfliglfts made to S^ x, ^fi;iiLX^.'u t3-f "

him under Rule 65(3y-pl'||^^g|ya Pradesh Industrial Relations Act, ;ee months from the date of receipt v.

within a maximum peTj^ and/or production of cj 9.

The appeal is'ia;i^EB®SM the aforesaid modification of the orderofthe Industrial Sd/- Acting Chief Justice