w w w . L a w y e r S e r v i c e s . i n


H.J. Suresh, Bangalore & Another v/s Astra Zeneca Pharma India Ltd., Bangalore

    Writ Petition No. 8568 of 2013 (L-TER)
    Decided On, 12 May 2022
    At, High Court of Karnataka
    By, THE HONOURABLE MS. JUSTICE JYOTI MULIMANI
    For the Petitioners: A. Ram Mohan, Advocate. For the Respondent: C.K. Subramanya, B.C. Prabhakar, Advocates.


Judgment Text
(Prayer: This Writ petition is filed under Articles 226 and 227 of the Constitution of India, seeking certain reliefs.)

1. Sri.A.Ram Mohan, learned counsel for petitioners and Sri.C.K.Subramanya, learned counsel on behalf of Sri.B.C.Prabhakar for respondent have appeared in person.

2. The material facts of the writ petition can be stated quite shortly as under:

It is stated that the second petitioner was working as a medical representative at Bangalore from 02.05.2005 under the respondent - Company. He joined on June 1995 at Tamil Nadu at Villipuram, transferred to Pondicherry in 2002 and to Bhatinda in 2005. After the union FMRAI's intervention he was transferred to Bangalore. Since he could not afford an independent accommodation, the second petitioner was staying at the guest house of the first petitioner at Bangalore. It is said that the same was not tolerated by the respondent - Company and it started harassing the second petitioner. It is also stated that a charge sheet was issued on 30.05.2007 to the second petitioner which was replied by him vide letter dated:06.06.2007.

The second petitioner was called for inquiry on 25.06.2007. It is averred that the second petitioner was not given an opportunity to defend and the inquiry was completed in one day i.e., on 25.06.2007 with all members being from the respondent - Company. Thereafter, therespondent - Company by its letter dated:06.08.2007 terminated the services of the second petitioner. The second petitioner filed an application in I.D.No.28/2007. The respondent - Company appeared and filed the counter. After due contest, the Labour Court rejected the petition vide order dated:27.04.2012.

Under these circumstances, the petitioners having left with no other of alternative and efficacious remedy has filed this Writ Petition under Articles 226 and 227 of the Constitution of India.

3. Sri.A.Ram Mohan, learned counsel for petitioners submits that the order of the Labour Court is perverse, arbitrary and illegal.

Next, he submitted that several Industrial disputes were pending at the time of termination of the second petitioner. Hence, the respondent company- Management ought to have filed an application under Section 33(2)(b) of the Industrial Dispute Act, 1947 (for short 'the Act')seeking post facto approval of order of termination. Since the mandatory statutory provision has not been complied with by the respondent/Company - Management, the dismissal is non-est in the eye of law and hence the second petitioner is entitled for reinstatement along with full back wages, continuity of service and consequential benefits.

A further submission is made that the respondent/Company-Management did not hold inquiry before terminating the services, hence the termination is not justified on the ground of principles of natural justice.

It is submitted that the second petitioner was not provided any accommodation, hence he was constrained to stay at union office. The respondent/Company- Management took strong objection for staying in the union office. It is also submitted that the Labour Court has failed to appreciate that the second petitioner was transferred frequently.

Learned counsel vehemently contended that there is victimization on the part of the respondent/company- Management in not providing accommodation, transport allowance, non-supply of study material for sales promotion etc. Counsel was very critical in his submission that the management has not done anything to help the second-petitioner in his work.

Learned counsel strenuously urged that having regard to the background of the nature of the charges and the pressure used by the respondent/company- Management to achieve their end, it is clear that the case on hand is a case of victimization.

It is also submitted that there is a discrimination and violation ofArticle 14of the Constitution of India and the second petitioner is deprived of legitimate expectation of better service conditions.

Lastly, he submitted that viewed from any angle, the order of the Labour Court is unsustainable in law. Accordingly, he submitted that appropriate Writ may be issued to quash the order.

To substantiate the contentions, learned counsel for petitioner has relied upon the following decisions:-

1. 2002 AIR SCW 249 - JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LTD. VS. SHRI RAM GOPAL SHARMA AND OTHERS.

2. 2001 AIR SCW 2023 - M.D., TAMIL NADU STATE TRANSPORT CORPORATION VS. NEETHIVILANGAN KUMBAKONAM.

3. (2015) 9 SCC 345 - RAJ KUMAR DIXIT VS. VIJAY KUMAR GAURI SHANKER, KANPUR NAGAR.

4. 2012 (4) AIR KAR R 518 - SRI.M.M.NARAYANA AND OTHERS VS. THE MANAGEMENET OF KSRTC CENTRAL OFFICER, BANGALORE.

5. 2019(1) AKR 245 (KALABURGI BENCH) - DIVISIONAL CONTROLLER, NEKRTC, GULBARGA VS. SITARAM AMARSINGH RAJPUT.

6. 2015 (4) AKR 857 (KALABURGI BENCH) - THE DIVISIONAL CONTROLLER NEKRTC, BIDAR DIVISION, BIDAR VS. VENKAT.

7. 2013 (3) AKR 168 (1) (DHARWAD BENCH) - HOLEYAPPA S/O HANAMAPPA MOKASHI VS. THEDIVISIONAL CONTROLLER, NWKRTC, BAGALKOT DIVISION.

8. 2012 LAB I.C.4353 (MADRAS HIGH COURT) - MANAGEMENT OF METROPOLITAN TRANSPORT CORPORATION LTD VS. THIRU D. CHINNATHU GOWNDER AND ANR.

4. Sri.C.K.Subramanya., learned counsel for respondent justified the order of the Labour Court.

Next, he submitted that the charges proved against the second petitioner were very serious in nature. He was a regular non-performer and he did not make even an iota of effort to correct himself. The corrective efforts of the Management to correct the second petitioner did not fortify. Considering the aspects of the matter, the punishment of termination imposed by the Management is commensurate to the magnitude of the misconduct proved against the second petitioner. The Labour Court has rightly held that the punishment imposed on the second petitioner is proportionate to the gravity of the misconduct proved against him. Counsel therefore, submitted that this is not afit case to invoke the provisions ofsection 11A of the I.D Act for consideration of lesser punishment.

A further submission is made that the award of the Labour Court is very well supported by both oral and documentary evidence on record. The Award of the Labour Court is purely a fact finding. It is also submitted that the High Court in exercising Writ jurisdiction underArticle 226of the Constitution of India would not reappreciate the evidence and come to a different conclusion unless the Award is totally perverse and is not at all supported by any evidence on record.

Learned counsel submitted that the standard of proof required to prove the charges in the Labour Court is preponderance of probabilities. Unlike in criminal cases the charges need not be proved beyond reasonable doubt in the domestic enquiry.

It is submitted that when an application is filed underSection 10(4-A) of the I.D Act(Karnataka Amendment1987), the Labour Court would get jurisdiction to adjudicate the dispute in the same manner as a dispute referred to by the Government for adjudication.

Sri.K.C.Subramanya., learned counsel strenuously urged that the contention with regard toSection 33(2)(b)of the Act is only an afterthought. No such contention was taken before the Labour Court. There is no evidence to this effect. Hence, it is not open for the petitioners to urge the ground which has not been taken up before the Labour Court. It is also submitted that filing of application underSection 33(2)(b)was not mandatory in the present case since even according to the petitioners, no common Industrial dispute of the workmen was pending. The individual dispute questioning transfer in the year 2006 is of no relevance to the termination made in the year 2007 for the proved misconduct of low performance.

It is further submitted that the Labour Court in extenso referred to the material on record and concluded that the dismissal is justified. Under such circumstances,the Award cannot be interfered with by this Court on the sole ground of non-filing of Application underSection 33(2)(b)of the I.D Act.

Learned counsel vehemently contended that the petitioners only tried to show that the Labour Court has not considered the various aspects pertaining to the allegation of victimization.

It is also submitted that the allegation of discrimination and equality is not available to the workman in the matter of disciplinary proceedings. It is further submitted that the second petitioner has accepted the appointment order hence, legitimate expectation is not applicable.

Lastly, he submitted that the scope of judicial review is very much limited. The finding of the Labour Court is in clear appreciation of evidence on record followed by detailed reasonings. Hence, there are no valid grounds warranting the interference by this Court in thewell-considered Award passed by the Labour Court. Accordingly, he prayed for the dismissal of the petition.

To substantiate the contentions, learned counsel for respondent relied upon the following decisions:-

1. (1982) ILR DELHI 535 - INDIAN TOURISM DEVELOPMENT CORPORATION VS DELHI ADMINSITRATION AND OTHERS.

2. AIR 1979 SC 1356 - POTTERY MAZDOOR PANCHAYAT VS PERFECT POTTERY CO. LTD. AND ANOTHER.

3. (2013) 9 SCC 232 - RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND OTHERS VS SATYA PRAKASH.

4. (2016) 12 SCC 221 - MANAGEMENT OF KARUR VYSYA BANK LTD VS S.BALAKRISHNAN.

5. (2017) 16 SCC 540 - MANAGING DIRECTOR NEKRTC KARNATAKA VS SHIVASHARANAPPA.

6. AIR 1956 SC 231 - J.K. IRON AND STEEL CO LTD., KANPUR VS THE IRON AND STEEL MAZDOOR UNION, KANPUR.

7. AIR 2009 SC 1103 - BACHHAJ NAHAR VS NILIMA MANDAL AND OTHERS.

8. AIR 2012 SC 2010 - A.SHANMUGAM VS ARYA KSHATHRIYA RAJAKULA VAMSATHU MADALAYA NADHAVANA PARIPALANAI SANGAM,REPRESENTED BY ITS PRESDIENT AND OTHERS.

9. 2014 (4) SCC 693 - RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND OTHERS VS BAJRANG LAL.

10. AIR 2021 SC 4504 - UNION OF INDIA (UOI) AND OTHERS VS DALBIR SINGH.

11. AIR 2011 SC 1931 - STATE BANK OF BIKANER AND JAIPUR VS NEMI CHAND NALWAYA.

12. AIR 1999 SC 3579 - R.S.SAINI VS STATE OF PUNJAB AND OTHERS.

13. AIR 2006 SC 2296 - U.P. STATE SUGAR CORPORATION LTD., AND OTHERS VS SANT RAJ SINGH AND OTHERS.

14. AIR 1997 SC 2229 - BALBIR CHAND VS FOOD CORPORATION OF INDIA LTD. AND OTHERS.

15. AIR 1997 SC 2661 - PUNJAB DIARY DEVELOPMENT CORPORATION LIMITED AND OTHERS VS KALA SINGH AND OTHERS.

16. AIR 1997 SC 633 - R.THIRUVIRKOLAM VS PRESIDING OFFICER AND OTHERS.

17. AIR 2016 SC 3333 - STATE OF MAHARASTRA AND OTHERS VS ANITHA AND OTHERS.

18. AIR 2019 SC 5087 - NAVEEN JAIN VS UNION OF INDIA (UOI) AND OTHERS.

19. (2006) 12 SCC 570 - THE MANAGING DIRECTOR, THE NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION VS K.MARUTI.

20. (2008) 5 SCC 569 - CHAIRMAN AND MD V.S.P. AND OTHERS VS GOPARAJ SRI PRABHAKAR HARI BABU.

21. 2002 (1) SLR 341 (SC) - REGIONAL MANAGER RSRTC VS GHANASHYAM SHARMA.

22. (2008) 5 SCC 554 - USHA BRECO MAZDOOR SANGH VS MANAGEMENT OF USHA BRECO LTD. AND ANOTHER.

23. AIR 2006 SC 3018 - UPSRTC VS MITTHU SINGH.

24. AIR 2006 SC 586 - U.P.STATE BRASSWARE CORPORATION LTD. AND ANOTHER VS UDAI NARAIN PANDEY.

5. Heard the contentions urged on behalf of parties and perused the writ papers with care.

6. The questions which arise for consideration are as under:

1. Whether the Labour Court is justified in confirming the order of Punishment?

2. Whether violation ofsection 33(2) (b) can be raised in the absence of pleadings?

3. Whether there is violation ofArticle 14of the Constitution of India?

4. Whether the second petitioner is deprived of legitimate expectation of better service conditions?

5. Whether this court can grant judicial review of a decision of Industrial Adjudicator?

The respondent/Company - Management is a Pharmaceutical Industry having excellent worldwide reputation. It consists of world class manufacturing units conforming to WHO standards and having good manufacturing practice. The service conditions of the employees are governed by the terms and conditions of the Appointment Order, Service Rules, Settlements signed with the recognized Union from time to time.

The second petitioner joined the respondent - Organization as Trainee-Professional Sales Representative (PSR) during June 1995 and his probation commenced on 01.01.1996. On 19.08.1996, the probation period of the second petitioner was extended since his performance was not satisfactory. Finally, he was confirmed in service as 'Professional Sales Representative'.

It is said that the performance of the second petitioner was found to be unsatisfactory right from January 2006. He was not efficient in his work and he did not make any attempt to improve his efficiency despite giving him sufficient opportunity to improve his performance. While the second petitioner admitted his low performance, he was only giving irrelevant and unconnected reasons as alibi for his low performance. Hence, he was served with a letter on 13.03.2006 calling for explanation. It was made known to him that the opportunity was given to him to improve his working ability. The explanation submitted by the second petitioner was not satisfactory.

The second petitioner was once again advised to improve his performance vide letter dated:14.07.2006. Ultimately his performance was reviewed on 12th January 2007 for the period covering October 2006 to December 2006. There was no improvement. Hence, he was servedwith charge sheet on 30.05.2007 levelling the charges against him as under:

a) Neglect of work or habitual negligence.

b) Habitual failure to comply with any of the provisions of the Company's service rules or any other office order.

c) Any other act/acts subversive of discipline and/or detrimental to the interests of the company.

The second petitioner was called upon to submit his explanation as to why appropriate disciplinary action should not be taken against him. He offered explanation on 06.06.2007. The explanation was not satisfactory. The inquiry was held by the Business Director South, VP-HR and Sr. Manager Corporate Employee Relations on 25.06.2007 at Corporate Office. The preliminary Inquiry was conducted by giving an opportunity to the second petitioner. After concluding the preliminary inquiry the report was submitted by the committee on 25.06.2007.

Suffice it to notice that the findings of the Committee based on inquiry were as follows:

I. Not achieved call average of 10 from January 06 to April 07.

II. Unlisted doctors were covered in spite of the same failed to achieve call average of 10.

III. ABM has realigned the territory to help him in achieving call average of 10, which has not been achieved.

IV. Reports not legible.

V. Reporting to Joint work late giving the reasons of traffic jam, water problem etc., VI. Doctor list finalization is more from point of business need is prepared and changed.

The second petitioner was furnished with a letter dated:29.06.2007 intimating the findings and he was also given a final opportunity to represent his case as to why appropriate disciplinary action should not be taken against him. The second petitioner submitted his reply on 17.07.2007 which was found unsatisfactory and ultimately his services were terminated with effect from 10.08.2007.

The second petitioner moved an application undersection 10(4-A) of the I.D. Act. The Labour Court adjudicated the dispute and ultimately dismissed the reference. The order of the Labour Court is challenged in this writ petition on various grounds as set out in the memorandum of writ petition.

REGARDING 10(4-A) OF THE I.D. ACT.

Suffice it to note that sub section (4-A) was inserted by Karnataka Act 3 of 1988 with effect from 07.04.1988. The same reads as under.

"(4-A) Notwithstanding anything contained insection 9Cand in this section, in the case of a dispute falling within the scope ofsection 2A, the individual workman concerned may, within six months from the date of communication to him of the order of discharge, dismissal, retrenchment or termination or the date of commencement of the Industrial Disputes (Karnataka Amendment) Act, 1987, whichever is later, apply, in the prescribed manner, to the Labour Court for adjudication of the dispute and theLabour Court shall dispose of such application in the same manner as a dispute referred under sub-section (1).

Note. - An application under sub-section (4-A), may be made even in respect of a dispute pending consideration of the Government for reference, on the date of commencement of the Industrial Disputes (Karnataka Amendment) Act, 1987".

A bare reading of the above Section makes it very clear that the amended section gives the liberty to the individual workman who has been discharged, dismissed, retrenched or terminated may directly approach the Labour Court for adjudication of such an application in the same manner as a dispute referred for adjudication undersection 10(1)(c)of the I.D Act. The Labour Court has to dispose of the application underSection 10(4-A) of the Actin the same manner as a dispute referred to by the Government for adjudication.

Therefore, when an application is filed underSection 10(4-A) of the I.D Act, the Labour Court is required toadjudicate as if it is a Reference made by the Government for adjudication undersection 10(1)(c)of the I.D Act.

The law is well settled that the jurisdiction of the Labour Court Industrial Tribunal in Industrial disputes is limited to the points specifically referred for its adjudication and matters incidental thereto and it is not permissible to go beyond the terms of the reference. An Industrial Adjudicator constituted under the Act is not vested with any inherent power or jurisdiction. It exercises such jurisdiction and power only upon and under order of reference limited to its terms. The Labour Court cannot travel beyond the prayer made in the application.

As already noted above, in the present case, the workman filed an application for adjudication of the dispute. The parties put forth their pleadings. The Labour Court formulated the issues based upon the pleadings. The parties to the dispute have let in evidence on the issues. It is well settled that the Court cannot travel beyond the points of dispute. The Industrial Adjudicator rightlyadjudicated the dispute between the parties. It is needless to say that the Industrial Adjudicator in extenso referred to the material on record and passed the award. There is substantial compliance ofsection 10(4A) of the I.D. Act.

REGARDING 33 (2) (B)

Sri.A.Ram Mohan., learned counsel for petitioners vehemently contended that no approval has been granted by the Tribunal. It is also contended that several industrial disputes were pending at the time of termination of the second -petitioner. Hence, the respondent/company- Management ought to have filed an application undersection 33(2) (b) of theI.D. Act. Learned counsel placed reliance on JAIPUR ZILLA SAHAKARI BHOOMI VIKAS BANK LTD VS RAM GOPAL SHARAMA's case reported in 2002 (1) LLJ 834. Having regard to the fact that no application was filed for the approval of dismissal order as required underSection 33(2)(b)of the I.D Act and in view of the law laid down by the Apex Court in Jaipur Zilla'scase, the order of dismissal is void and inoperative and the dismissal order is void ab initio.

In reply, it was argued by Sri C.K.Subramanya learned counsel for the respondent that the plea with regard tosection 33(2)(b)was not taken by the workman before the Labour Court. It is also argued that the Labour Court is not precluded from deciding the dispute on merits of the case.

I have considered the contentions urged on behalf of workman and the management with care. The preliminary point is, in effect a plea as to non-compliance ofsection 33(2) (b) of theI.D. Act.

In the present case, the Workman has not pleaded the violation of provision ofSection 33(2)(b)of the I.D Act. If there is violation ofsection 33(2)(b), it must be specifically pleaded and brought in evidence.

As is well known, that the pleadings must set-forth sufficient factual details to the extent it reduces the abilityto put forward a false or exaggerated claim or defense. The pleadings must inspire confidence and credibility. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration.

The Apex Court has repeatedly held that the pleadings are meant to give each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.

To over simplify again, the application was filed by the Workman challenging the legality of termination underSection 10(4-A) of the I.D Act. When once the applicationis made, the Labour Court is duty bound to decide the legality of the termination. If the termination is held to be justified, the allegation of violation of non-compliance of the provision i.e.,section 33(2)(b)of the I.D Act is of no consequence.

In this regard the law is well settled by the Hon'ble Apex Court in RAJASTHAN STATE ROAD TRANSPORT CORPORATION reported in 2013 (9) SCC 232; MANAGEMENT OF KARUR VYSYA BANK reported in 2016 (12) SCC 221; MANAGING DIRECTOR, NEKRTC KARNATAKA reported in 2017 (16) SCC 540.

In the light of these authorities, it can safely be held that the Industrial Adjudicator is required to answer whether the dismissal or such other punishment as may have been imposed on the Workman is justified in law. The issue of sustainability of the punishment imposed naturally has to be decided within the contours of the Reference jurisdiction. The Industrial Adjudicator i.e., the Labour Court is not precluded deciding the dispute on merits evenif there is violation ofSection 33(2)(b)of the I.D Act. When the dismissal is justified, the Labour Court cannot interfere with the order of punishment just for violation ofSection 33(2)(b)of the I.D Act.

It is relevant to note that even according to the second petitioner no common dispute relating to workmen was pending when the order of dismissal was made.

Assuming for a moment, there is violation of Section 33(2)(b) the Industrial Adjudicator has a twin duty in the matter of Reference; the first is to find out whether the employer has contravened provisions ofsection 33(2)(b)and if the finding is yes, the same is not conclusive since the Industrial Adjudicator is required to answer the further question as to whether the order of punishment of dismissal imposed on the workman is justified in law.

As already noted above, there is no pleading with regard to non-compliance ofSection 33(2)(b)and further the Industrial Adjudicator in extenso referred to the material propositions put forth by the parties to thedispute and has adjudicated the dispute. It is also well settled that the court cannot travel beyond the pleadings. Hence, the allegation that there is non- compliance ofsection 33(2) (b) must necessarily fail in the facts and circumstances of the present case.

REGARDINGARTICLE 14OF THE CONSTITUTION OF INDIA

Learned counsel Sri.Ram Mohan., addressed argument on discrimination and violation ofArticle 14of the Constitution of India.

Suffice it to note that the concept of equality is envisaged underArticle 14of the Constitution of India. The concept of equality enriched inArticle 14is a positive concept and not a negative concept. The burden of showing that the discrimination is apparent and manifest is upon the person who impeaches the law as a violation of the guarantee of equal protection. The allegation must be specific, clear and unambiguous and must give particulars. Throwing out vague hints that there may be otherinstances of like nature is not enough; such instances must be specified and it must be proved.

A good deal of argument was addressed by Sri. Ram Mohan, learned counsel on behalf of workman on discrimination and equality. I am unable to think that the case could be brought either under the ambit of discrimination or within scope ofArticle 14of the Constitution of India. The reasons are obvious that the allegation of discrimination and equality is not available to the workman in the matter of disciplinary proceedings. The concept of equality as envisaged underArticle 14of the Constitution of India cannot be enforced in a negative manner. It is a positive concept; nobody can claim equality in illegality. Therefore, I do not think that it would serve any useful purpose to the second petitioner to allege discrimination and equality.

REGARDING LEGITIMATE EXPECTATION

The last argument advanced by Sri. Ram Mohan learned counsel for petitioners is with regard to protectionof legitimate expectation. He sought to contend that the workman is deprived of legitimate expectation of better service conditions.

In reply, Sri. Subramanya learned counsel for respondent argued that when once the employee accepts the terms and conditions of the Appointment Order and also other prevailing service conditions, he is estopped from claiming better benefits.

I have considered the contentions urged on behalf of workman and the management with utmost care.

Before, I answer this question, let us quickly glance the concept of legitimate expectation.

Since the early 1970's one of the principles justifying the imposition of procedural protection has been the legitimate expectation. Such an expectation arises where a person responsible for taking a decision has induced in someone who may be affected by the decision a reasonable expectation that he will receive or retain a benefit or that he will be granted a hearing before thedecision is taken. In such cases the courts have held that the expectation ought not to be summarily disappointed.

The scope of the legitimate expectation has been the subject of intense discussion; it is still in the process of evolution. It is founded upon a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations is at the root of the Constitutional Principle of the rule of law, which requires regularity, predictability, and certainty in Government's dealings with the public.

Lord Diplock stated that, for a legitimate expectation to arise, the decision: "must affect [the] other person... by depriving him of some benefit or advantage which either

(i) he had in the past been permitted by the decision- maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from thedecision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn".

As Lord Fraser put it, a legitimate expectation may arise "either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue".

Lord Diplock's definition of legitimate expectation makes clearer the circumstances in which it may arise, namely, from an expectation of a benefit or from an expectation of a hearing.

The principle underlying legitimate expectation is based onArticle 14of the Constitution of India and the rule of fairness. Where a person's legitimate expectation was not fulfilled by taking a particular decision then the decision-maker should justify the denial of such expectation by showing some overriding public interest. The doctrine of "legitimate expectation" is only an aspect ofArticle 14of the Constitution of India in dealing with thecitizens in a non-arbitrary manner and thus, by itself, does not give rise to an enforceable right but in testing the action taken by the government authority whether arbitrary or otherwise, it would be relevant.

I hope this introduction sets the scene sufficiently to enable me now to turn to the petitioner's attack on deprivation of legitimate expectation.

A good deal of argument was canvassed on legitimate expectation. However, there is no pleading in this regard much less a clarity regarding second petitioner's legitimate expectation. From the arguments, it could be gathered that the legitimate expectation of an employee/workman is 'better service conditions.' It is perhaps well to observe that legitimate expectation does not mean illegitimate flight of fancy. Legitimate expectation means what has been held out in the terms and conditions of the Appointment Order. When once the workman accepts the terms and conditions of the Appointment Order, he is estopped from making allegationwith regard to service conditions or better conditions. Therefore, I do not think that it would serve any useful purpose to the sec

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ond petitioner to take shelter legitimate expectation. REGARDING JUDICIAL REVIEW; Learned counsel for the workman and the management addressed argument on judicial review. I have considered the submission with utmost care. Suffice it to note that the workman may seek judicial review of a decision taken by the Industrial Adjudicator. The court could grant judicial review of a decision of an Industrial Adjudicator at the instance of a workman if the Industrial Adjudicator failed to discharge his/her statutory duty or if they abused or exceeded their powers. The Industrial Adjudicators have their statutory powers and duties, the exercise of which can be challenged by the process of judicial review only if certain principles of general application are met. The workman must showeither a failure to discharge their statutory duty to him or that they have abused their powers or acted outside them. No doubt a workman would not be excluded from seeking judicial review if he could show that the Industrial Adjudicator had either failed in his/her statutory duty or had been guilty of some action which was an abuse of his/her powers or outside their powers altogether. Lord Diplock stated [1981] 2 ALL E R 93 at 102, [1982] AC 617 at 637: " Judicial review is available only as a remedy for conduct of a public officer or authority which ultra vires or unlawful, but not for acts done lawfully...... ' The judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. The Industrial Adjudicators are amenable to the remedy of judicial review in a proper case. The present case does not illustrate the circumstances in which it would be appropriate to subject a decision of an Industrial Adjudicator to judicial review. By no stretch of imagination, this case could be brought within the scope of judicial review. The workman has failed to make out his case for intervention of court by way of judicial review. In so far as parameters to be followed in the matter of proportionality of punishment, the settled position of law is that in writ jurisdiction, the High Court would generally not interfere with the quantum of punishment unless the punishment imposed is shockingly disproportionate and also shocks the conscious of the Court. It is needless to observe that the consistent view of the Supreme Court is that in the absence of a finding that the punishment was shockingly disproportionate to the gravity of the charges established, the Labour Court shouldnot interfere with the punishment. In my considered opinion, the Labour Court is justified in its action. To conclude, this Court can only say this much that the findings of the Labour Court are very well supported by both oral and documentary evidence on record. The order does not require any interference by this Court. Counsel for petitioners and respondent have cited number of cases, but I do not think that the law is in doubt. Each decision turns on its own facts. The present case is also tested in the light of the aforesaid decisions. 7. In the result, the writ petition is dismissed.
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