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2005 DIGILAW 422 (GAU)

Indian Oil Corporation Ltd. v. Presiding Officer

2005-05-31

RANJAN GOGOI

body2005
R. GOGOI, J.— The refusal of the Industrial adjudicator to approve the actions of the petitioner employer in dismissing the respondent workmen under Section 33 (2) (b) of the Industrial Disputes Act is the subject matter of consideration of this Court in the present writ proceeding. 2. The facts are long and only what is required is being recited herein. The respondent workman was transferred from the Guwahati office of the petitioner to Digboi by an order dated 13.11.85. The aforesaid order of transfer was not given effect to as the reliever of the workman was not available. Thereafter by an order dated 16.1.86 the respondent workman was directed to report at Digboi on 17.2.1986. By letter dated 7.2.86, the workman sought for three months of further continuance at Guwahati on the ground that his son was sitting in the matriculation examination. The aforesaid request of the respondent workman appears to have been allowed by the employer as by a letter dated 18.2.86 the respondent workman was asked to report at Digboi on 15.5.86. Thereafter two communications dated 28.4.86 and 29.4.86 were issued by the employer; the first one required the respondent workman to hand over charge at Guwahati by 30.4.86 and by the second communication he was released from Guwahati with effect from 01.5.86. On 1.5.86 a dispute arose between the respondent workman and his reliever as well as the officials of the petitioner employer with regard to handing over of charge by the respondent and the matter had to be eventually resolved by the police whose intervention had to be invited by the employer to ensure that the respondent-workman did not continue to work in the Guwahati office. It is in these circumstances that a charge sheet dated 21.5.86 was issued, a reading of which would go to show that the respondent workman was alleged to have acted in contravention of the orders dated 28.4.86 and 29.4.86 requiring him to hand over charge to his reliever. There was a further charge of failure to handover charge to the reliever of the respondent workman and also that the respondent workman had abused or misbehaved with his superior. A domestic enquiry was held in respect of the aforesaid charges and at the conclusion of the said enquiry, on the basis of the report of the Enquiry Officer, the workman was dismissed from service by order dated 28.11.1986. A domestic enquiry was held in respect of the aforesaid charges and at the conclusion of the said enquiry, on the basis of the report of the Enquiry Officer, the workman was dismissed from service by order dated 28.11.1986. As, at the relevant point of time, an industrial dispute with regard to a claim of bonus involving the respondent workman was pending, the petitioner employer filed an application before the Central Industrial Tribunal at Calcutta under Section 33(2)(b) of the Industrial Disputes Act and on the basis of the said application, Misc. Case No. 9/88 was registered. The learned Industrial Tribunal by its order dated 26.4.89 held the domestic enquiry held by the employer to be vitiated and allowed the parties to lead evidence before it. Eight witnesses were examined on behalf of the employer whereas the respondent workman concerned examined three witnesses including himself. Thereafter, an order dated 1.2.1996 was passed by the learned Tribunal refusing to accord approval to the dismissal of the workman which was challenged by the employer before this Court in a writ proceeding registered and numbered as Civil Rule No. 3013/1996. By order dated 16.11.1998, this Court answered the aforesaid writ proceeding by causing remand of the matter to the learned Tribunal for a de novo adjudication on the basis of the evidence already adduced. It is pursuant to the aforesaid order of this Court dated 16.11.1998 that the presently impugned order dated 18.11.99 has been passed refusing once again to accord approval to the dismissal of the respondent workman. 3. Having noticed the relevant facts, this Court may now proceed to understand the precise grievance of the writ petitioner with regard to the order passed by the learned Tribunal. Mr. S. N. Sarma, learned senior counsel appearing for the writ petitioner, in the course of a very long and elaborate argument, has contended that the jurisdiction of Industrial Adjudicator under Section 33 of the Industrial Disputes Act, 1947 is a limited jurisdiction which is to be exercised primarily to determine whether the punishment proposed or which has been imposed, as the case maybe, had led to victimization or unfair labour practice or is otherwise malicious. According to learned counsel, the jurisdiction or otherwise of the punishment proposed or imposed has to be judged from the aforesaid limited perspective, in view of the fact that even after a punishment is imposed or is approved under Section 33(2)(b) of the Act, it would still be open for the concerned workman to invoke the provisions of Section 10 of the Act. Relying on two decisions of the Apex Court in the case of Lord Krishna Textile Mills Vs. Its workmen and in the case of Lala Ram Vs. Management of DCM Chemical Works Ltd. &Ors., reported in AIR 1961 SC 860 and AIR 19 78 SC 1004 respectively as well as a judgment of this Court in the case of Md. Anwar Azim Borah Vs. State of Assam reported in 1988(2) GLR (NOC) 8, learned counsel has submitted that the Industrial Tribunal in the present case had clearly exceeded the jurisdiction vested by Section 33(2)(b), inasmuch, as the learned Tribunal has embarked upon a full fledged enquiry with regard to the justifiability or otherwise of the punishment imposed on the respondent workman. Pointing to the findings recorded by the learned Tribunal below as regards the charges levelled against the respondent workman, Sri Sarma, learned counsel for the petitioner, has contended that the said findings are diametrically opposed to the weight of the materials on record. Ext-M/11 and M/12 i.e. the orders dated 28.4.86 and 29.4.86, disobedience of which has been alleged, according to learned counsel for the petitioner, was duly served on the workman as evident from the deposition of M.W. 4. In such a situation the findings recorded by the learned Tribunal that the petitioner was not aware of his transfer would not be correct. In this regard reliance has also been placed on the document exhibited as Ext-M/1 i.e. the letter of the respondent workman seeking extension of his tenure at Guwahati on account of his son's exanimation. With regard to the second part of the charges levelled against the respondent workman, the contention advanced by Sri Sarma, learned counsel for the petitioner, is that the oral evidence of M. Ws. 3 and 4 having conclusively proved that the workman had not handed over charge to his reliever and has misbehaved with his superior, the contrary findings recorded by the learned Tribunal is contended by the learned counsel to be wholly unsustainable in law. 4. Mr. 3 and 4 having conclusively proved that the workman had not handed over charge to his reliever and has misbehaved with his superior, the contrary findings recorded by the learned Tribunal is contended by the learned counsel to be wholly unsustainable in law. 4. Mr. Dasgupta, learned counsel for the respondent workman, at the very outset, has raised a question which, it is argued, would go to the root of the matter. Learned counsel has argued, by relying on a judgment of the Apex Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma & Ors., reported in 2002 (2) SCC 244 , that the requirements contained in the proviso to Section 33 (2) (b) are mandatory and non-compliance with the said mandatory requirement would vitiate the dismissal order. A subsequent decision of the Apex Court in the case of Indian Telephone Industries Ltd. & Anr. Vs. Prabhakar H. Manjuare & Anr., reported in 2003(1) SCC 320 has also been relied upon by Sri Dasgupta, learned counsel for the respondent-workman. According to Sri Dasgupta, in the present case the requirement of payment of one month's wages to the workman was not complied with by the employer and the said defect could not have been subsequently cured on the ratio of the judgment of the Apex Court in the case of Indian Telephone Industries Limited (supra). The dismissal order of the respondent workman, according to learned counsel, accordingly, would be of no legal effect and, therefore, the question of grant of any approval under Section 33(2)(b) will not arise. Consequently, it is argued, the present proceedings should be terminated by this Court, on the aforesaid basis. The point argued, as noticed above, being a question of law has been sought to be contended by the learned counsel for the respondent to be available notwithstanding the absence of any pleadings in this regard. If the workman had not been paid his wages for one month as mandated by the proviso to Section 33(2)(b), indeed, all actions will stand vitiated and the question of approval will not really arise. If the workman had not been paid his wages for one month as mandated by the proviso to Section 33(2)(b), indeed, all actions will stand vitiated and the question of approval will not really arise. Keeping in mind the potential that the aforesaid point has, for providing an answer to the question raised, this Court had ventured to look into the materials on record to satisfy itself as to whether, in the present case, the proviso to Section 33(2)(b) would be attracted or not. In this regard, the Court has noticed the evidence of the workman which is to the effect that in the dismissal order itself it is mentioned that the wages for one month are to be collected by the respondent workman from the employer which he refused to do so. Thereafter the workman was served with a letter sent under insurance cover of Rs. 18767- which he received though he has denied receipt of any payment along with the said letter. The fact that an insured letter of a particular amount was sent would be a strong pointer that the workman was paid his one month's wages. That apart, the Tribunal in the impugned order has clearly recorded that the receipt of wages of one month was not disputed before it by the workman. In such a situation this Court is inclined to take the view that the materials on record in the present case point to the direction of the workman having received one month's wages as contemplated by the proviso to Section 33(2)(b). 5. Having answered the preliminary question raised by Sri Dasgupta, learned counsel for the respondent-workman, this Court may now proceed to understand the other contentions advanced by the learned counsel. Sri Dasgupta has pointed out that in the present case the domestic enquiry held against the workman prior to his dismissal from service was found by the learned Tribunal to be vitiated in law on account of non-compliance of the principles of natural justice. Thereafter, both sides adduced evidence, oral and documentary, before the learned Tribunal. Sri Dasgupta has pointed out that in the present case the domestic enquiry held against the workman prior to his dismissal from service was found by the learned Tribunal to be vitiated in law on account of non-compliance of the principles of natural justice. Thereafter, both sides adduced evidence, oral and documentary, before the learned Tribunal. According to Sri Dasgupta, in a proceeding under Section 33(2)(b) when evidence of the contesting parties are led before the Tribunal, the jurisdiction of the Tribunal has necessarily to 'be understood to be broad and it is open for the Tribunal to determine the justifiability or correctness of the punishment imposed on the basis of the evidence adduced before it. Relying on judgment of the Apex Court in the case of M/s. Bharat Iron Works Vs. Raghubhai Balubhai Patel, reported in AIR 1976 SC 98 Sri Dasgupta has contended that in a case like the present where the domestic enquiry is found to be vitiated and evidence was led before the Tribunal, the learned Tribunal was free to arrive at its own conclusion in the matter on due consideration of the evidence and materials on record and this is precisely what has been done by the learned Industrial Tribunal in the present case. Sri Dasgupta has further argued that in the present case, on a consideration of the evidence and materials on record, the learned Industrial Tribunal came to the conclusion that the dismissal of the respondent workman was not made in accordance with the standing orders in- force thereby vitiating the punishment imposed on the respondent workman. Pointing out the relevant part of the evidence on record Sri Dasgupta has, therefore, contended that no infirmity can be found with the findings recorded which would justify interference of this Court with the impugned order dated 18.11.99 passed by the learned Industrial Tribunal. 6. Section 33 of the Act contemplates prior permission or approval, as the case maybe, in respect of a disciplinary measure that an employer seeks to or has imposed on a delinquent workman. The object behind the enactment of Section 33 has always been understood to-be to ensure that there is no victimization or unfair labour practice in respect of a workman against whom disciplinary action is sought to be taken or has been imposed, in a situation where there is already an industrial dispute pending, involving such a workman. The object behind the enactment of Section 33 has always been understood to-be to ensure that there is no victimization or unfair labour practice in respect of a workman against whom disciplinary action is sought to be taken or has been imposed, in a situation where there is already an industrial dispute pending, involving such a workman. It is in keeping with the object behind Section 33 that the scope, sweep and extent of the powers of the Industrial Court under Section 33 must be understood. Punishment proposed or imposed in respect of which prior permission or approval, as may be, has been sought, may or may not be preceded by a domestic enquiry. On the ratio of the law laid down by the Apex Court in Lord Krishna Textile Mills (supra) and Lala Ram (supra), relied upon by the learned counsel for the petitioner, the first endeavour of the Industrial Court must be to find out whether the domestic enquiry held is valid on the touchstone of the principles of natural justice. If the domestic enquiry held against the respondent workman is found to be valid, the jurisdiction of the Industrial Court under Section 33(2)(b) would be limited to seeing whether a prima facie case for according approval has been made out or not and in proceeding in the matter the Industrial Court may consider: (a) "Whether the standing orders justify the order of dismissal, (b) Whether an enquiry has been held as provided by the standing order, (c) Whether the wages for the month have been paid as required by the proviso, and (d) Whether an application has been made as prescribed by the proviso." [Lord Krishna Textile Mills Vs. Its Workmen reported in AIR 1961 SC 860 ] To the above areas of examination another significant and permissible area of adjudication would be to see whether the punishment imposed is byway of victimization or unfair labour practice. The determination to be made by the Industrial Court under Section 33(2)(b) in a situation where the domestic enquiry has been found to be valid will naturally have to be on the basis of the records of the domestic enquiry. The determination to be made by the Industrial Court under Section 33(2)(b) in a situation where the domestic enquiry has been found to be valid will naturally have to be on the basis of the records of the domestic enquiry. If, however, a domestic enquiry has not been held or if held is found to be invalid, the Industrial Court will have to allow evidence of the contesting parties to be adduced before it and it is only on an appraisal of such evidence that the question as to whether approval should be granted or not under Section 33(2)(b) has to be reached. Though in the second situation, the jurisdiction of the Industrial Court under Section 33(2)(b) may, at first blush, appear to be broader than in the first, in reality there is no fundamental difference in the scope and extent of the power to be exercised as in both the situations. The ultimate conclusion of the Industrial Court under Section 33(2)(b) has to be reached from the stand point of whether there has been any victimization or unfair labour practice in the disciplinary measure that has been imposed by the employer. The justification of the punishment imposed must be necessarily tested by the Industrial Court under Section 33(2)(b) from the above stand-point as any other view may have the effect of impairing a possible adjudication under Section 10 of the Act, recourse to which would still be available to the concerned workman even in a case where approval has been granted under Section 33(2)(b). 7. The distinction noted above is fine and in some cases the dividing line may appear to be thin. The question of victimization or unfair labour practice being adopted may in a given case be inextricably linked up with the question of justification of the punishment and in such cases the dividing the between the limited power of the Industrial Court under Section 33(2)(b) and the broader power under Section 10 may get obliterated. However, what must be emphasized is that the distinction is real and discernible and therefore must be maintained and the task of identification of the distinction or the dividing line must be left to the discretion of the Industrial adjudicator to be exercised after due and proper application of judicial mind. What must be emphasized is that care must be taken not to render the provisions of Section 10 nugatory. 8. What must be emphasized is that care must be taken not to render the provisions of Section 10 nugatory. 8. In the present case, the learned Tribunal while exercising jurisdiction under Section 33(2)(b) and in refusing to accord approval to the punishment of dismissal imposed by the employer did not record any finding that the punishment imposed was by way of victimization or unfair labour practice. Fault was found with the dismissal made on the ground that it was contrary to the provisions of the standing orders in force. The conclusions reached, therefore, had the effect of touching upon the merits of the dismissal order which does not pertain to the area of adjudication contemplated by Section 33(2)(b). Not only jurisdiction not vested in the Tribunal appears to have been exercised, even, otherwise the findings recorded are not taxable on the face of the evidence and materials adduced by the parties. Specifically, the learned Tribunal had recorded the finding that in the charge-sheet issued to the workman, there is no mention that the workman was required to give his explanations to the charges levelled and, therefore, the charge sheet issued was contrary to clause XIV(3) of the Standing Orders in force. In a situation where the workman had participated in the proceedings before the learned Tribunal by adducing oral and documentary evidence, the aforesaid conclusion can hardly be accepted to be a valid or legally acceptable ground for a refusal to grant approval under Section 33(2)(b). That apart, the learned Tribunal had also recorded the finding that the transfer order itself was contrary to the standing orders in force, inasmuch, as the post to which the workman was transferred was different i.e. a clerical post whereas the post he was earlier holding was an operational post. The legality or validity of the transfer order was not an issue before the learned Tribunal; in any case, the justifiability of the actions of the workman in violating the same on the aforesaid basis could not be a permissible area of adjudication under Section 33(2)(b). The findings recorded by the learned Tribunal on the specific charges levelled against the workman, for reasons indicated separately, also appear to be opposed to the weight of the evidence on record, particularly the testimony of MWs 3,4 and 5. The findings recorded by the learned Tribunal on the specific charges levelled against the workman, for reasons indicated separately, also appear to be opposed to the weight of the evidence on record, particularly the testimony of MWs 3,4 and 5. Lastly, the findings of the learned Tribunal that the punishment imposed is not sustainable as it has been so imposed without consideration of the service records of the workman as mandated by the standing orders in force, without recording any finding that it was intended to be an act of victimization or unfair labour practice, would be wholly outside the purview of the permissible area of adjudication under Section 33(2)(b) of the Act. 9. Notwithstanding the discussions that have preceded, this Court, in order to satisfy itself that the charges levelled against the workman by the charge-memo dated 29.5.1986 stands substantiated by the materials on record and that there has been no victimization or unfair labour practice against the workman, had scrutinized the oral evidence and other materials on record. Such scrutiny reveals that in so far as the charge of disobedience of the orders contained in the communications dated 28.4.86 and 29.4.86 (Exts. M/11 and M/12) is concerned, the evidence of MW 4 indicates that the said communications were duly received by the workman. There is hardly any contrary material on record not to accept the oral testimony of the MW 4 as noticed above. In this regard, the evidence of the workman himself is not specific on the point and what is denied, in a somewhat ambiguous manner, is the receipt of the initial transfer order and not the communications dated 28.4.86 and 29.4.86. In such circumstances, the Court is of the considered view that it would be reasonable to hold that Exts. M/l 1 and M/12) were duly served on the workman and he received the same; and in spite of being released from service and directed to hand over the charge to his reliever the respondent workman did not so act. Specifically, the evidence of MW 3 and MW 4 may be noticed, in this regard. Both the said witnesses corroborate each other and the combined effect of the evidence of the said two witnesses is that the respondent workman did not voluntarily hand over charge to his reliever and the said reliever had to be ordered by the superior official (MW4) to take over charge. Both the said witnesses corroborate each other and the combined effect of the evidence of the said two witnesses is that the respondent workman did not voluntarily hand over charge to his reliever and the said reliever had to be ordered by the superior official (MW4) to take over charge. The further evidence of the aforesaid two witnesses is that after the reliever took over charge from the respondent workman, the workman got annoyed and shouted at MW 4 who is his superior and asked him to leave the office. There is no contrary material on record for this Court not to accept the aforesaid version of the witnesses examined by the management employer and having regard to the facts and circumstances, as revealed by the evidence on record, this Court is inclined to take the view that all the charges, as contained in the charge sheet dated 21.5.86, stands proved against the respondent workman. 10. For the aforesaid reasons, the impugned, order dated 18.11.99 passed by the learned Industrial Tribunal is set aside and the matter is remanded to the learned Tribunal below for passing of appropriate orders granting approval under Section 33(2)(b) in terms of the present directions.