Chand Mohammad v. Indian Oil Corporation and Ors. — 1998 DIGILAW 240 (GAU)

This is an application under Article 226 of the Constitution of India assailing the Award dated 9th ay, 1994, passed by the Presiding Officer, Industrial Tribunal, Guwahati in Reference No.3 (c)/88. 2. The petitioner, Md Chand Mahammad, was initially appointed as Messenger by the respondent No.2, vide its order dated 13.12.78. Pursuant to the said appointment letter, the petitioner joined in his service on 23.1.79, and he was , posted in the Material Department. By order dated 16.9.81, the petitioner was placed under suspension and thereafter a charge sheet was issued to the petitioner for his alleged misconduct vide his charge sheet dated 16.9.81, relevant portion of which reads as follows : "It has been found that at the time of interview held on 29th/30th November, 1978, for the selection of candidates for the posts of Canteen Bearer/Kitchen Helper/ Messenger, you submitted a declaration in the form used for such purpose and in column No. 9 of the said form you stated that you had passed the HSLC Examination held in 1976 in II Division. On being so represented, you were selected as Messenger. After your appointment, you submitted your personal data on 29.1.79 alongwith your photograph attached in the 'Attestation Form' and in the said form also you again stated that you have passed the HSLC Examination held in 1976 from Puthimari Higher Secondary School in II Division. While scrutinising your personal record, you were asked to submit the original certificate in support of your education qualificational and on being so instructed you submitted a certificate (original) dated 11.8.76 purported to be a certificate issued by the Principal, Puthimari Higher Secondary School and also a provisional certificate from the Secretary, Board of Secondary Education of Assam wherein it has been stated that you have passed the HSLC Examination held in 1976 and placed in II division. After verification of the said certificates from the concerned authorities, we have come to know that the paper/certificate furnished in support of your qualification are forged documents and as such you secured employment fraudulently by furnishing forged documents in support of your qualification. The above referred acts constitute misconduct on your part as per the clause 18 (iv) and 18 (xxi) of the Standing Orders applicable to you." 3. The above referred acts constitute misconduct on your part as per the clause 18 (iv) and 18 (xxi) of the Standing Orders applicable to you." 3. A domestic enquiry was conducted and after conclusion of the domestic enquiry, the Inquiry Officer found the workman guilty of the misconduct under clauses 18 (iv) and 18 (Xxi) of the Certified Standing Orders. The management accepted the enquiry report and dismissed the workman from service with effect from 16.7.82, vide office order No. MTM/8 dated 16th July, 1982. The workman raised an industrial dispute and in due course, the Govt of India by notification dated 10.2.87 bearing No.L.30012/14/85. PHI (B), referred the industrial dispute between the Management of Guwahati Refmery, Indian Oil Corporation and its workman under section 1.0 (1.) (d) and sub-section (2A) of the Industrial Disputes Act for adjudication on the following issue: "Whether the action of the Management of Guwahati Refinery (IOC), Noonmati, Guwahati-20, in dismissing the services of Md Chand Mohammad Ali, Messenger, Guwahati Refinery wef 16.7.82 is justified? If not to what relief the workman is entitled ?" 4. Before the Tribunal, the management examined one witness and the workman examined three witnesses. The learned Tribunal after adjudication of the matter, found that management was justified in dismissing the workman from his service on the ground of misconduct and accordingly the reference was answered and the Tribunal passed the impugned Award which is challenged hi the this proceeding. 5. Mr. LP Sharma, learned counsel appearing on behalf of the petitioner has! £ assailed the legality and the validity of the Award on the ground or" perversity and illegality. Mr. Sharma, learned counsel for the petitioner, pointed to the materials on record and submitted that the alleged misconduct was not established. Mr. Sharma further submitted that the learned Tribunal fell into serious error in not exercising its power under section 11A of hte Industrial Disputes Act. 6. Mr. PC Deka, learned counsel for the respondents management seriously c disputed the contentions of the workman. Mr. Deka, the learned senior counsel pointed to the nature of the misconduct and its ramifications. Mr. Deka further submitted that a fraud was committed by the workman for getting the benefit of public employment and went upto the length of perpetrating the crime of forgery of document. Mr. Deka, the learned senior counsel pointed to the nature of the misconduct and its ramifications. Mr. Deka further submitted that a fraud was committed by the workman for getting the benefit of public employment and went upto the length of perpetrating the crime of forgery of document. The learned senior counsel pointed out that the workman committed , the aforesaid misconduct knowing it well that it was 'misconduct'. In support of his contentions, Mr. Deka pointed to the exhibits more particularly the Attestation Form filled up by the petitioner on 5.2.79 which was marked as Ext 16. The Attestation Form which was duly filled up by the petitioner and signed by him, contained the following: "(i) The furnishing of false information or suppression of any factual information in the Attestation Form would be a disqualification, and is likely to render the candidate unfit for employment under the Corporation. (ii) If detained, convicted, debarred etc subsequent to the completion and submission of this form, the details should be communicated immediately to the Corporation, failing which it will be deemed to be a suppression of factual information. (iii) If the fact that false information has been furnished or that there has been suppression of any factual information in the Attestation Form comes to notice at any time duringthe service of a person, his services would be liable to be terminated." 7. Mr. Deka, the learned senior counsel pointed out that the material statements those were made by the petitioner were all false information which were given at the time of appointment to deceive the authority. The learned senior counsel further pointed out that the case of the petitioner deserved extreme penalty and the learned Tribunal, on consideration of the materials on record, did not deem it fit to exercise its discretion conferred on it under section 11A of the Industrial Disputes Act. He submitted that the Standing Orders of the Management dealing with the acts and omissions-constituting misconduct. The relevant provision of the Standing orders pertaining to 'misconduct' applicable to this case are cited below : "18. Acts and omissions constitute misconduct : The following acts and omissions shall constitute misconduct: (xxi) Giving false information regarding particulars required to be given at the time of appointment or during service" Penalties for misconduct is also provided for by clause 19 of the tanding Orders. 8. Acts and omissions constitute misconduct : The following acts and omissions shall constitute misconduct: (xxi) Giving false information regarding particulars required to be given at the time of appointment or during service" Penalties for misconduct is also provided for by clause 19 of the tanding Orders. 8. In the instant case, the management duly initiated action under the provisions of the Standing Orders by giving written charge sheet alleging misconduct and the workman was afforded opportunity of clarification in the enquiry conducted by the Inquiry Officer. Going through the materials on record, I do not find any infirmity in the enquiry as such though Mr. Sharma, the learned counsel for the petitioner, questioned the competence of the Inquiry Officer and also the enquiry proceeding. However, on consideration of the fact situations as also the materials on records, I do not find that the Inquiry Officer in any way disabled him while conducting enquiry. In the case in hand, the learned Presiding Officer of the Tribunal, evaluated the evidence on record and fairly and dispassionately considered the same. There cannot be any contrary opinion as regards the misconduct that was committed by the workman on the fact situations. Form the fact and circumstances, it clearly appears that the petitioner provided inaccurate and incorrect information pertaining to his educational qualification at the time of appointment as per clause 18 (xxi) of the Standing Orders. 9. Mr. LP Sharma, learned counsel for the petitioner, however submitted that the petitioner was eligible for appointment as a Messenger Boy since he had the requisite qualification of reading upto Class VIII. On the other hand Mr. Deka pointed to the deposition of the PW1 who stated about the minimum requisite qualification for a Canteen Boy to be Matriculation. Mr. Sharma, the learned counsel, submitted that the qualification was raised long after the appointment of e the petitioner. It was specifically stated that the qualifications during the relevant period was Class Vin. Evidence on record, however, does not show that the workman did not possess the minimum qualification for being, appointed as a Messenger during the relevant period nor the Tribunal made any finding as such. 10. The only question that survives now is as to whether the punishment of dismissal was justified in the fact situations. Evidence on record, however, does not show that the workman did not possess the minimum qualification for being, appointed as a Messenger during the relevant period nor the Tribunal made any finding as such. 10. The only question that survives now is as to whether the punishment of dismissal was justified in the fact situations. The issue referred to the Tribunal was whether the action of the Management in dismissing the service of the workman was justified. The Tribunal found that "the false information furnished by him to the authority in the declaration form as well the Attestation Form is nothing but a misconduct, and his dismissal cannot be said to be an illegaUabour practice or vindictive attitude." The learned Presiding Officer addressed his mind basically to the proof of the misconduct as well as to the bonafide of the action. Whether on the facts and circumstances of the case the order of dismissal was lawful and proper was not gone into by the learned Tribunal and the learned Tribunal did not address its mind to this issue though that was a relevant issue which ought to have been gone into by the Presiding Officer of the Industrial Tribunal. That was a statutory duty which was conferred on the authority to go into as to whether the workman raised the issue or not. Section 11A is a beneficial provision and atleast the Tribunal was obligated under the statute to examine the rationality and proportionality of the punishment. 11. The Industrial Disputes Act, 1947 (as amended) is a piece of beneficial legislation enacted to protect the interests of the workmen. In construing the provisions of a welfare legislation, it is the duty of the Labour Courts, Tribunal a and other institutions to adopt a generous construction. As a corollary of the above principle, if two constructions are possible, the construction which furthers the policy and object of the Act and more beneficial to the workman is to be approved. The object of the Act is to safeguard the service conditions of the workman. By enacting section 11A of the Act, the Legislature conferred a wide discretion on the Labour Court and Tribunal in the matter of awarding relief in b the fact situations of the case. The object of the Act is to safeguard the service conditions of the workman. By enacting section 11A of the Act, the Legislature conferred a wide discretion on the Labour Court and Tribunal in the matter of awarding relief in b the fact situations of the case. It casts a duty on the Labour Courts and the Industrial Tribunals to satisfy itself about the legality and propriety of the penalty imposed on the workman while adjudicating the industrial dispute. Merely by holding that the misconduct is proved against the workman, will not absolve the Tribunals and Labour Courts from its statutory duty. While exercising this power, the Tribunals are to consider all the aspects of the matter, including the nature of c the offence, the services so far rendered by the workman and numerous other factors. Unfortunately, the learned Tribunal failed to exercise its jurisdiction. This is not the normal function of the High Court and I would have preferred to remit the matter to the learned Tribunal. However, considering the length of the proceeding and taking note of the fact that the dismissal of the workman took ^ place as far back as in July 1982. Considering all the aspects of the matter, instead of sending back the matter to the Tribunal, I undertake to exercise the power under section 11A in aid of Article 226 of the Constitution of India, on the facts and circumstances of the case. Considering the fact that the management failed to prove and establish that the workman lacked the essential qualification for being appointed as a Messenger Boy in the establishment, the absence of e proof pertaining to the information regarding particulars required to be given at the time of appointment, no proof was forthcoming from the Management as to the information required to be given at the time of appointment (ie the minimum qualification for appointment). The workman by giving the false information, did not gain any undue benefit, nor the Management suffered any corresponding loss since the petitioner did not lack the essential qualification for being appointed as / a Messenger Boy. 12. Considering the fact situations and the length of service of the workman, the order of dismissal emerged to be disproportionate. The workman has already suffered. 12. Considering the fact situations and the length of service of the workman, the order of dismissal emerged to be disproportionate. The workman has already suffered. Considering all the attending circumstances, I am of the view that the ends of justice will be met if the order of dismissal is set aside and by modifying g the same by an order for withholding three increments. The order of dismissal is accordingly set aside. The Management/respondents are ordered to reinstate the petitioner in the above terms. The workman will not be entitled for any back wages. The period of suspension shall be treated as decision (sic). 13. The writ petition is accordingly allowed to the extent indicated. There shall, however, be no order as to costs.