Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 317 (CAL)

Monoranjan Chakrabortty v. State of West Bengal

2001-05-25

PRATAP KUMAR RAY

body2001
JUDGMENT Pratap Kr. Ray. J. Challenging the award dated 22nd May, 1996 passed by the learned First Industrial Tribunal, West Bengal in the matter being No. VIII-168/93 as published by the Government of West Bengal, Department of Labour by order No. 1032-IR/IR/LOL-119/93 dated 17th June, 1996 whereby and whereunder upon holding that Sri Monoranjan Chakrabortty was not a workman under the definition of section 2(s) of the Industrial Disputes Act, hereinafter refer to as said Act, the reference as made by Government of West Bengal, Labour Department Order No. 1368-IR/IR/IOL-119/92 dated 7th September, 1993 to determine the issue "whether the dismissal of Sri Monoranjan Chakrabortty (workman) with effect from 24th October, 1991 from service is justified and "what relief if any was he entitle to" was decided as non-maintainable due to jurisdictional point in view of finding that the concerned employee was not workman, this writ application has been filed by the said Sri Monoranjan Chakrabortty only on short point for decision as to whether the evidence on record as relied upon by the learned Tribunal in arriving said conclusion is perverse and arbitrary and/or passed on no evidence which will attract the field of judicial review of this court. 2. The fact in brief as follows :- Monoranjan Chakrabortty, writ petitioner joined the service as welder on 2nd July, 1962 in M/s. Bells Controls Limited, a public limited company incorporated under the Companies Act, 1956 hereinafter refer to as said company. It is an Engineering Industry engaged in manufacturing of different mechanical and electrical instruments. On promotion, the petitioner was transferred to the Electroplating Department upon designation as Supervisor. The petitioner's pay was fixed at the time as revised as per Engineering Industry wise tripartite settlement as was applicable to his service condition. Charge sheet being No. CS/DISP/91 dated 29th May, 1991 was issued on allegation that petitioner deliberately distorted the daily incentive report of workman of Electroplating Department, indulged in illegal activity by changing the part number, which was mentioned in the works order issued by Production Planning Department. It is further alleged that by way of doing it, the petitioner had intentionally manipulated the incentive points of new workman of Electroplating Department subjecting them with more incentive points by way of such falsification and petitioner himself had availed such advantage. It is further alleged that by way of doing it, the petitioner had intentionally manipulated the incentive points of new workman of Electroplating Department subjecting them with more incentive points by way of such falsification and petitioner himself had availed such advantage. On the aforesaid charge, petitioner was directed to explain upon holding that the said misconduct was violative of sub-clauses II, XIII and XXXI of clause 13(b) of the Companies Certified Standing Order. The petitioner was suspended from service in pursuance of the provision as laid down in the Standing Order of the Company. After holding the domestic enquiry ultimately the petitioner was dismissed on said charges of misconduct as proved in terms of aforesaid clause of the said Certified Standing Order by the decision dated 24th October, 1991 as issued by Chief Executive of the said Company. The petitioner made a representation on 3rd January, 1992 which was forwarded by the union wherein the writ petitioner belongs namely Betoble Union Limited Workers Union and in response to such the Chief Executive of the said company by letter dated 17th January, 1992 rejected the prayer of reinstatement upon referring the fact that due to major misdemeanors in. terms of Certified Standing Orders of the company domestic enquiry was properly held and petitioner was found guilty of the charges. 3. An Industrial Dispute was raised by the concerned union and Government of West Bengal of Labour Department Order No. 1368-IR/IR/IOL-119/92 dated 7th September, 1993 had referred the said Industrial Dispute under section 10 read with section 2A of the said Act for adjudication of the issues namely:- "(a) Whether the dismissal of Sri Monoranjan Chakrabortty (workman) with effect from 24.10.91 from service is justified? (b) What relief, if any, is he entitled to ?" 4. Respective parties namely the workman, present writ petitioner and the said company, filed their written statements. Said company took a point that the reference was not maintainable as the delinquent was not a workman under section 2(s) of the said Act as the said employee was engaged as supervisor and his duty was supervision of general department, administration works namely incentive point distribution, recommendation and sanction of leave of the workman working under him and to take disciplinary action against the workman. It is further stated in the written statement that salary of the employee concerned was more than Rs. 1600 per month. It is further stated in the written statement that salary of the employee concerned was more than Rs. 1600 per month. In view of such, the learned Tribunal below decided the issue as a preliminary point as to whether the concerned employee was workman or not. On consideration of the evidence on record the said Tribunal came to a finding that the delinquent employee was not a workman in terms of section 2(s) of the said Act and accordingly held that reference was not maintainable. 5. Said Company has filed opposition with reference to the writ application as moved challenging the said award and repeated the same contention as made before the learned Tribunal. The learned Advocate of the petitioner submits that even on factual matrix of the case on record it was not proved that the writ petitioner is not a workman. It is contended that since the writ petitioner pay and other service condition is controlled and guided by the wage settlement being a tripartite settlement as reached under section 18(3) of the said Act, the petitioner is workman. It is further contended that the company failed to prove by adducing proper evidence about supervising function of the delinquent. It is asserted further that mere nomenclature of designation as 'supervisor' ipso facto will not determine the status of the employee concerned as supervisor and not belonging to category of workman. 6. The learned Advocate of the petitioner intended to invite this Court to travel over the evidence on record by way of reassessment of the evidence. It is further pointed out by the writ petitioner that the charge sheet and the dismissal order as well as the domestic enquiry since all proceeded in terms of the Certified Standing Order of the company, such point was not at all considered by the learned Tribunal below in adjudicating the reference and accordingly the impugned award is arbitrary, perverse and illegal which is ex facie on record. 7. 7. Learned Advocate of the petitioner submitted that the main work of the delinquent employee to be looked into to ascertain the fact whether writ petitioner is a workman or not and reliance has been placed to the judgment in the case Ananda Bazar Patrika (P) Ltd. vs. Workman, appearing in the book Supreme Court on Industrial Disputes Act, 1947 at page 674, reliance has also been placed to the judgment Aakal Govinda Raj Rao vs. Shiba Gaigy of India Limited, as published in the book Supreme Court on Industrial Disputes Act, 1947 page 677. It is further contended that the writ petitioner discharged initial onus that he is the workman and accordingly the burden shifted. Company was required to disapprove it, but the company failed. Reliance is placed to the judgment of Bombay High Court in the case President, Onath Mohila Asram, Kolapur vs. Ajagaonkar J.G.(Smt.), reported in 1997(3) LLJ(Supple) 342. The petitioner further submits that since domestic enquiry was initiated and completed as per Standing Order by issuance of charge sheet and passing of the dismissal order, the said company is estopped from denying the status of the writ petitioner as workman and reliance has been placed to the judgment of the Bombay High Court in the case S.A. Sarang vs. W.G. Forge and Allied Industries Limited & Ors., reported in 1995(1) CLR 837. 8. The learned Advocate of the respondent Company submitted that sitting in the writ jurisdiction this Court will be slow to interfere with the factual findings as recorded by the learned Tribunal below on the basis of the evidence on record. Reliance has been placed to the judgment in the case Sadhu Ram vs. Delhi Transport Corporation, reported in 1983(2) LLJ 383 (SC). It is further contended by the learned Advocate of the respondent company that in the event this court comes to the finding that writ petitioner is the workman and the award impugned is not legally tenable, then matter will be remitted back for adjudication before the learned Tribunal and the interim orders to be decided by the said Tribunal in terms of section 15(2)(b) of the said Act. 9. 9. Considering the rival contention of the parties this matter is accordingly decided : There is no dispute on the legal proposition that the writ court exercising the power of judicial review surely would not reassess the evidence on record for ascertaining the issue as to whether the learned Tribunal below was justified in coming to the conclusion on actual matrix of the matter that the writ petitioner was not a workman. The evidence on record before the Tribunal consisted of documents and oral testimony. Though this court will not reassess the evidence on records but it is also true that mere designation of the writ petitioner as 'supervisor' ipso facto will not disentitle him to the benefits of his status as workman of the said Company. The cardinal point to test whether an employee is a workman or not is not rested upon the designation but the main job for which he is engaged. The word 'supervisor' means a person overseas the work of others. A person can be said to be a supervisor if there are persons working under him, over whose work he has to keep a watch. In brief, a person who examines and keeps a watch over the work of his subordinates and in the event of any error it is corrected by him, surely then person concerned will come under the category of supervisor in terms of the said Act. This point is not at all res integra. Catena of judgments has settled legal position holding that designation and/or nomenclature of the post will not ipse dixit will stamp the employee concerned as supervisor. Though this court on settled principles of judicial review on actions of quasi judicial authority cannot travel into the evidence on record to ascertain the factual issue in question but there is no absolute bar to look into the evidence on record for the purpose that the concerned Tribunal had the sufficient materials before him in coming to a conclusion. 10. In the instant case, from the award itself it appears that there is conflicting evidence on record to determine the said fact. No evidence was forthcoming that the writ petitioner is controlling the others subordinates in discharge of his duty. Whatever, the evidence has been adduced by the company relates to in the nature of recommending the incentive points, the leave matters etc. No evidence was forthcoming that the writ petitioner is controlling the others subordinates in discharge of his duty. Whatever, the evidence has been adduced by the company relates to in the nature of recommending the incentive points, the leave matters etc. but it does not mean that they are subordinates to the writ petitioner and writ petitioner had the control over those employees. Be that as it may this Court is not going into factual matrix of the case namely by which conclusion was reached by the said Tribunal. However, on simple perusal of the award it is found that the learned Tribunal did not consider at all the relevant factors namely the charge sheet, the order of dismissal and initiation of domestic enquiry and conclusion of that which were held in terms of the Standing Order of the company. Further the Tribunal did not at all consider the impact of tripartite settlement, which controls the service condition of the writ petitioner. It is admitted that the company issued a charge sheet in terms of the Certified Standing Order of the company upon pointing out inter alia in the charge sheet to this effect :- "This is a gross misconduct as well as illegal activity on your part which violates the following sub clauses of the clause 13(b) of the Company's Certified Standing Orders :- (ii).......dishonesty in connection with the employer's business or property. (viii).....any act subversive of discipline. (xxiii) Booking excess production. (xxxi)......willful falsification, defacement or destruction of any records of the Company. You are hereby asked to explain with 48 hours from the receipt of this charge sheet why disciplinary action should not be taken against you." 11. The domestic enquiry was concluded following the Standing Order of the company. The dismissal order of the writ petitioner reads as follows :- "We have carefully gone though the enquiry proceedings, records and the findings of the Enquiry Officer and have come to the same conclusion as arrived at by the Enquiry Officer and is fully satisfied beyond any reasonable doubt that you are guilty to the charges levelled against you which are serious misconduct under sub-clauses ii, viii, xxiii and xxxi of clause 13(b) of the Certified Standing Orders of the Company for which you are liable to be dismissed. As there is no extenuating circumstances in your favour and considering the seriousness of the misconduct done by you, the management has decided to dismiss you." 12. Furthermore, the writ petitioner's prayer for reinstatement in terms of representation by the letter dated 3rd January, 1992 when was turned down, the said company reiterate the point referring the compliance of all provisions of Certified Standing Order, which reads as follows :- "In this connection, we have to inform you that Mr. Chakrabortty was chargeshetted for major misdemeanors in terms of the Certified Standing Orders of the Company. As the explanation of the concerned workman was not satisfactory, a domestic enquiry was ordered in respect of the charges levelled against him. In the course of us domestic enquiry the principles of natural justice were followed. The Enquiry Officer has found the concerned workman guilty of the charges. The Management carefully considered the proceedings of the domestic enquiry, the findings of the Enquiry Officer and concurred with the findings of the Enquiry Officer." 13. Hence, the learned Tribunal in the impugned order did not at all considered the said aspect of the matter whereby the company without any ambiguity in the language had admitted that the domestic enquiry was initiated and completed in terms of the Certified Standing Order of the company. The Certified Standing Order of a company is applicable to the workman. Hence, once the company admitted and proceeded with domestic enquiry following the procedures laid down in the Certified Standing Order whether the company can turned down and take the plea that the writ petitioner is not workman? It is a pure question of law to be dealt with by this Court on exercise of the power of judicial review. Under the doctrine of estoppel by election when the domestic enquiry was started in terms of the Certified Standing Order of the company and company proceeded against the writ petitioner holding him as workman of company and thereby applied the Standing Order for the alleged misconduct to reach a conclusion by a domestic enquiry and when in the charge sheet, the violation of Standing Order was mentioned and the writ petitioner was dismissed by referring the clauses of Standing Order, which was proved to be violated, the company cannot take a different stand in a proceeding before the Tribunal when a reference has been made on issue of such dismissal. It was crystallized in a domestic enquiry concluded in terms of the Standing Order of the company, recognizing the writ petitioner as a workman. In terms of section 115 of the Evidence Act, the company is estopped from taking a different stand that the writ petitioner was a supervisor and not a workman. Section 115 of the Evidence Act reads as follows : "When one person, as by his declaration, Act or omission, initial caused or permitted another person to believe a thing to be true and to act upon such believe, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the approval of that thing." 14. In the instant case, the company had caused or permitted the writ petitioner to believe that he is a workman and the company accordingly acted and concluded the domestic enquiry following the Certified Standing Order and as such in a proceeding before the Tribunal, the company is estopped to raise a different stand that petitioner was not a workman but supervisor. Section 115 of the Evidence Act is squarely applicable in the instant case reliance is placed to the judgments in the case R.N. Gosain vs. Yashpal Dhir, reported in 1992(4) SCC 683 , Prashant Ramchandra Deshpande vs. Maruti Balaram Haibatti, reported in 1995 Supp(2) SCC 539 and State Bank of Patiala & Ors. vs. S.K. Sharma, reported in 1996(3) SCC 364 . 15. The aforesaid legal question has not at all been considered and adjudicated upon by the learned Tribunal below and thereby it became an erroneous decision, which is vitiated with perversity and illegality. The award ex facie accordingly cannot stand. Applying the said doctrine of estoppel, the company was estopped to take a different stand before the Tribunal. Furthermore, in terms of the impact of tripartite settlement under section 18(b) of the said Act, since the petitioner service condition was controlled by that and all though petitioner has been considered as workman in the domestic enquiry from its initiation to a conclusion stage, the award impugned by the Tribunal accordingly is not legally sustainable. In that view of the matter this Court hold that the writ petitioner is a workman within the meaning of section 2(s) of the Act. In view of the aforesaid finding, the writ application is allowed. In that view of the matter this Court hold that the writ petitioner is a workman within the meaning of section 2(s) of the Act. In view of the aforesaid finding, the writ application is allowed. The impugned award is set aside and quashed. It is held that petitioner is a workman within the meaning of section 2(s) of the said Act and reference No. 1368-IR/IR/IOL-119/92 is maintainable. The said reference is accordingly remanded back to the concerned Tribunal for trial and disposal in accordance with law and on the basis of the observation and finding in this judgment. So far as the relief in terms of section 15(2)(b) of the said Act is concerned, it to be decided as expeditiously as possible by the learned Tribunal below but within a month from the date of communication of this order in accordance with law. The writ application accordingly succeeds. Later: 25.05.2001 Let urgent xerox certified copy of this order, if applied for, be given to the parties expeditiously. Writ application allowed.