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2001 DIGILAW 131 (CAL)

BHARAT CHANDRA GHOSH v. CHAIRMAN, COAL INDIA LTD

2001-03-08

ASHIM KUMAR BANERJEE

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A. K. BANERJEE, J. ( 1 ) WRIT petitioner was a clerk in Coal India Limited. He was charge-sheeted on September 25, 1985, inter alia, for misappropriation of money amounting to Rs. 2931. 94 by drawing fictitious bills. That the amount of Rs. 2931. 94 covers three bills i. e. bill for Rs. 1407. 77 drawn in favour of one Shri Narayan, Loco Driver; Rs. 1256. 83 drawn in favour of one Kati Maji, Driller and Rs. 267. 34 drawn in favour of Bodi Kora. ( 2 ) IT appears from the deposition of Shri Kumar an officer of Coal India Limited that the first two amounts had been drawn by the respective employees whereas the third amount had been deposited as unclaimed. ( 3 ) THE charge-sheet had ultimately resulted an order of dismissal. An appeal was preferred against the said order of dismissal. Such appeal has not been disposed of as yet. Challenging the order of dismissal reference was made to the Labour Court under section 10 of the Industrial Dispute Act, 1947. The tribunal ultimately gave award its against the writ petitioner. The award of the tribunal has been impugned before me in this writ petition. ( 4 ) THE learned Advocate appearing for the writ petitioner has attacked the order of dismissal on the following grounds:- (I)the charge that the petitioner withdrew the amount covered under the bills has been proved to be false; (II)there has been violation of the natural justice as the documents asked for by the writ petitioners were not called for by the Tribunal in terms of the order dated October 13, 1988; (III)the charge sheet was issued by a person who is not the disciplinary authority as per the standing order and before passing the order of dismissal on approval has been taken in accordance with the standing order; (IV)since the charge is of criminal nature the respondent authority ought to have initiated criminal proceedings by lodging FIR which has not been done; (V)the penalty imposed upon the writ petitioner is disproportionate and section 11a of the Industrial Dispute Act has not been considered by the Tribunal; ( 5 ) MR. SWAPAN Banerjee, learned Advocate appearing for the writ petitioner has submitted that since the three amounts on the basis of which the charge sheet was issued had not been withdrawn by the writ petitioner as wrongly alleged in the charge sheet the order of dismissal should not have been passed. In the alternative Mr. Banerjee has submitted that even if the charges are proved the penalty is disproportionate to the charge and the tribunal ought to have considered the provisions of section 11a of the Industrial Disputes Act. In support of his contention Mr. Banerjee has cited the decision of the apex Court reported in AIR 1990, Supreme Court, page 1054. ( 6 ) MR. Banerjee further contended that the charge sheet itself is bad in view of the fact that it has not been issued by the disciplinary authority in accordance with the standing order and no approval of the order of dismissal has been obtained in accordance with the standing order. Lastly he contended since the appeal under section 18 of the standing order has not been disposed of the tribunal ought not to have passed any award affirming the order of dismissal. ( 7 ) IN support of his contention Mr. Banerjee has cited following decisions:-air 1987, Supreme Court, Page 821; Lab. I. C. 1987, Page 77; Lab. I. C. 1990, Page 1531; AIR 1990, Supreme Court, Page 149. ( 8 ) MR. R. N. Mazumder, learned Advocate appearing for the respondent in reply to the contention raised by the petitioner has submitted that the Manager of the colliery is competent to take disciplinary action against any employee as per the power delegated to him by the relevant rules. Hence, the proceeding is lawful as initiated by the manager of the concerned colliery. Reliance has been placed in this regard on the case reported in 1994, Vol. II, Supreme Court Cases, page 708 and 1996, Volume II, Supreme Court Cases page 145. ( 9 ) WITH regard to the imposition of penalty of dismissal Shri Mazumder has contended that the order of dismissal was passed by the Chief General Manager. However, the same was communicated by the manager. It has also been contended that the standing order relied on by the writ petitioner does not relate to the Eastern Coal Fields Limited or Coal India Limited. Hence, the said contention is not tenable. However, the same was communicated by the manager. It has also been contended that the standing order relied on by the writ petitioner does not relate to the Eastern Coal Fields Limited or Coal India Limited. Hence, the said contention is not tenable. It has further been contended that under the Mines Act owner has been defined and by virtue of the Coal Mines Nationalization Act the respondent authority is now owner of the mines and it acts through the Chief General Manager who is the competent authority in passing the order of dismissal. Hence no further approval is necessary. ( 10 ) WITH regard to the non supply of documents it has been contended that those documents were not necessary to be called for as found by the tribunal and the said order of the tribunal was not challenged by the writ petitioner. ( 11 ) LASTLY, it has been contended by the Respondent that the Tribunal after considering the gravity of charges found that the dismissal was the only punishment proportionate to the offence committed by the concerned workmen and as such the award of the Tribunal is lawful and there is no violation of 11a of the said Act of 1947 to the said extent. ( 12 ) THE first point raised by Shri Banerjee is not tenable. The tribunal has considered the report of the domestic enquiry as well as the evidence. The Tribunal found that there had been no challenge to the validity and fairness of the domestic enquiry by the writ petitioner. The preparation of those three bills were not in dispute. It was also not in dispute that those three bills were fictitious, whether the writ petitioner had got any benefit out of those three fictitious bills or not, are of no consequences since the raising of the fictitious bill is itself an offence and since such charge has been proved I do not find any substance with regard to the first contention of Shri Banerjee. ( 13 ) WITH regard to the order of the Tribunal dated October 13, 1988 I find that the Tribunal at the instance of the writ petitioner passed an order that those documents would be called for at the time of final hearing in case those were necessary. ( 13 ) WITH regard to the order of the Tribunal dated October 13, 1988 I find that the Tribunal at the instance of the writ petitioner passed an order that those documents would be called for at the time of final hearing in case those were necessary. Since at the time of final hearing the tribunal did not think it fit to call those documents I do not find anything wrong on the part of the tribunal in not calling such documents in terms of the order dated October 13, 1988. ( 14 ) WITH regard to third point raised by the petitioner I agree with the contention of Shri Mazumder appearing for the respondent that by virtue of the nationalization the concept of owner has now been totally changed. Coal India Limited is a juristic person and acts through it's Board of Directors, Officers who are competent to discharge particular functions. In the instant case the Chief General Manager was the concerned officer and the order had been passed by the Chief General Manager. Hence no further approval was necessary from the owner and as such the argument to the said extent on behalf of the petitioner is not tenable. ( 15 ) THE fourth submission of the writ petitioner is however of substance. This aspect has been overlooked by the Tribunal. The tribunal should have taken this factor into consideration with regard to the penalty imposed upon the writ petitioner. ( 16 ) WITH regard to the contention that the tribunal has not considered the provision of 11a of the Industrial Dispute Act, 1947, I feel that the Tribunal has been empowered under 11a to consider the quantum of punishment even if the charges are proved having regard to the past conduct of the concerned employee and having regard to the other relevant factors with regard thereto. As I have just now said hereinbefore that there had been no criminal proceeding initiated by the respondent authority against the writ petitioner and the said fact, according to me, is a relevant factor to be considered by the tribunal in accordance with the provisions of 11a. It was also to be considered by the Tribunal that the past record of the writ petitioner was good. It was also to be considered by the Tribunal that the past record of the writ petitioner was good. Paragraph 14 and 15 of the award of the Tribunal is relevant herein and are quoted below:-"considering the nature of the offence and the facts and circumstances, I find that dismissal is the only punishment which is proportionate with the guilty of the concerned workman. So I find nothing to interfere with the punishment awarded by the authority. In the result I find that the action of the management of Chinasuri Pit No. 3 Colliery in dismissing Sri Bharat Ghosh, clerk from service is justified. He is not entitled to get any relief. " ( 17 ) I find that the Tribunal committed error in observing that there has been misappropriation of money by the writ petitioner although such fact was not proved as will appear from the appreciation of the evidence done by the Tribunal itself. Be that as it may, the observation of the tribunal that the dismissal is the only punishment is not supported y any cogent reason. ( 18 ) THE Division Bench of Orissa High Court in the case reported in 1990 Lab. I. C. Page 1531 was of the view that the unblemished service carrier is a relevant consideration for interference by the Tribunal under section 11a. However, Division Bench of our High Court in the case reported in 1987, Lab I. C. Page 77 held a different view and observed that unblemished service carrier or the involvement of a poultry amount can not be the relevant factor calling for interference under section 11a by the Tribunal. Other cases cited by the parties are not discussed in detail as I find that those are not relevant to be discussed herein in the facts and circumstances of this case. ( 19 ) FACT of each and every case warranting interference under section 11a depends on various factors including the gravity of the situation, the nature of the offence, the unblemished service carrier etc. The Legislature thought it fit to empower the Tribunal to examine the reasonableness of the penalty imposed upon the concerned employee. What factor would be relevant for consideration is left to the Tribunal and I do not wish to deliberate on this issue. The Legislature thought it fit to empower the Tribunal to examine the reasonableness of the penalty imposed upon the concerned employee. What factor would be relevant for consideration is left to the Tribunal and I do not wish to deliberate on this issue. In the instant case what I find that the Tribunal did not at all consider whether the case was a fit case warranting interference under 11a. The Tribunal upon consideration may uphold the punishment or modify the same. However, by not giving any reason for upholding the punishment itself amounts to non consideration of section 11a. ( 20 ) SECTION 11a of the Industrial Dispute Act, 1947 empowers the Tribunal to examine whether the punishment is just and reasonable. Even if the charges are proved the Tribunal is empowered to given lesser punishment if it finds that the order of dismissal was not justified. Hence the Tribunal after coming to a conclusion that the charges are proved should have examined the nature of the punishment and should have come to a conclusion on appreciation of the evidence available on record whether the order of dismissal was justified or not. I find no such exercise has been made by the Tribunal on that score except by mechanical reproduction of the provision to the extent that the order of dismissal was justified. I therefore hold that the Tribunal was wrong in upholding the order of punishment without giving any reason as to why the case does not warrant interference under section 11a of the Industrial Dispute Act, 1947. In the result the writ petition succeeds in part. The award of the Tribunal dated June 21, 1990 appearing at page 85 of the writ petition is quashed to the extent wherein the Tribunal has upheld the punishment awarded by the disciplinary authority. The matter is sent back to the Tribunal for limited purpose for reconsideration of the punishment under section 11a of the said Act, 1947. The Tribunal is directed to give its award within two months from the date of communication of this order. The Tribunal before passing any order or giving any award would give opportunity to both the parties to make their submissions and to rely on any documentary evidence required for the purpose for which the matter is remanded back. Writ petition is thus disposed of accordingly. Petition disposed of.