Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 332 (GAU)

Manager, Issabheel Tea Estate v. State of Assam

2006-04-06

BROJENDRA PRASAD KATAKEY

body2006
JUDGMENT B.P. Katakey, J. 1. The appropriate Government i.e. the Government of Assam made a reference under Section 10 of the Industrial Dispute Act, 1947 to the learned Industrial Tribunal Assam at Silchar by issuing notification dated 13.2.95 referring the dispute whether the Management of Issabheel Tea Estate (Petitioner) was justified in dismissing the Md. Hanif Khan tractor driver (Respondent No. 3) from his service with effect from 5.7.89 and if not, to what relief the workman is entitled, on the basis of which reference Case No. 3 of 1995 was registered before the learned Tribunal. By the award dated 25.5.99 learned Tribunal answered the reference in the affirmative i.e. in favour of the workmen and directing the Management of Issabheel Tea Estate to reinstate him in service with effect from 5.7.89 i.e. the date of termination from service with full back wages as per the scale pay of the driver. The Management writ Petitioner by the present writ petition has challenged the said award passed by the learned tribunal. 2. The case of the workmen before the learned Tribunal was that he was engaged as a tractor driver having driving licence for driving a tractor for many years and instead of paying him scale pay prescribed for the driver, the Management used to pay him extra 50 paisa daily in addition to daily wage of a daily rated unskilled labour and when he asked the Management for payment of salary in the pay scale of the driver, he was ordered to work as a tractor helper to which workman protected and though he attended for duty regularly he was not allowed to work, ultimately struck off his name from the roll of the garden with effect from 5.7.89. The further case of the workman was that though a conciliation proceeding was held on 15.5.92 but because of the adamant attitude of the Management the conciliation failed. The Management while did not refute that the workman concerned (Respondent No. 3) was a worker under it, has stated in the written statement filed before the learned Tribunal that he was not a tractor driver and had no driving license for that purpose and abandoned his service without any intimation to the Management by absenting himself for a continuous period of 558 days from 5.8.87 to 5.7.89. It has further been stated by the Management in the written statement that the Respondent No. 3 joined his service under the Management on 7.7.69 as a daily rated ordinary worker and was doing various miscellaneous work in plantation and thereafter was taken as helper to the tractor driver and was paid Rs. 10 and 84 paise as daily wages apart from other service benefits available to the ordinary worker working in the Tea Estate. The further case of the Management was that as the workman was unauthorizedly absent from duty warning letters dated 8.8.87, 12.8.87 and 4.9.87, as required under the standing order in force, were issued and finally the charge sheet dated 7.9.87 was issued to him asking him to explain his conduct and though the same was received by the workman no explanation was filed. Thereafter waiting for a pretty long time till 4.7.89 removed his name from the garden roll having no other alternative left open to them. The Management in support of their case examined the Manager of the Tea Estate and exhibited nine documents being Exhibit A to Exhibit I. The workman also examined himself and exhibited six documents being Exhibit-1 to Exhibit-6 before the learned Tribunal. The learned Tribunal upon appreciation of the evidences on record, both oral and documentary, adduced by the respective parties, has held that though the charge sheet was issued no domestic inquiry was held, no notice regarding termination of service was served on the workmen as required under the provision of standing order, the workman concerned was engaged in driving the tractor though he had no license for driving a tractor, without issuing any order of appointment letter and had to remain away from the work as he was not given the work by the Management on the ground that tractor in which he worked became out of order. The learned Tribunal has also drawn adverse presumption in not producing the records by the Management relating to the performance of the workman as tractor driver, in spite of the order passed on the application filed the workman in that regard. The learned Tribunal has also drawn adverse presumption in not producing the records by the Management relating to the performance of the workman as tractor driver, in spite of the order passed on the application filed the workman in that regard. The learned Tribunal considering the nature of evidence on record has held that the Management was not justified in dismissing the workmen (Respondent No. 3) from service with effect from 5.7.89 and was also not justified in not paying the salary as per scale of a driver and directed the Management to re-instate him in service with effect from 5.7.89 and to pay back wages as per the scale pay of the driver with effect from that date. 3. I have heard Mr. A.K. Thakur, learned Counsel for the Petitioner and also Mr. A. Dasgupta, who was requested to assist the Court as Amicus Curiae as the workman in spite of notice did not appear before this Court, to which Mr. Dasgupta readily agreed. 4. Challenging the award passed by the learned Tribunal, Mr. Thakur, learned Counsel for the Petitioner submits that the workman (Respondent No. 3) did not attend his duties from 5.8.87 to 5.7.89 i.e. for a continues period of 558 days and though he was issued with three warning letters and also charge sheet, he did not report for duty and therefore the Management had not alternative but to struck off his name from the roll of the garden. It has further been submitted that the Respondent No. 3 workman was all through engaged on duly wage basis. Mr. Thakur, submits that in view of the evidences on record about the absence of the workman concerned from service for such a long period of time, the learned tribunal ought\not to have held that the Management was not justified in dismissing the workman from service. Keeping in view the admitted petition of fact that the workman was engaged on daily wages basis since scrutinizing the legality and validity of an award passed by the Industrial Tribunal. Keeping in view the admitted petition of fact that the workman was engaged on daily wages basis since scrutinizing the legality and validity of an award passed by the Industrial Tribunal. It has further been contended by the learned Amicus Curiae that action on the part of the Management in striking out the name from the roll of the garden amounts to retrenchment from service within the meaning of Section 2(00) of the Industrial Dispute Act and therefore before striking out the name from the roll, the management is bound to comply with the mandatory provision of Section 25F of the Act, which having not been complied with, the action on the part of the management in striking out the name of the workman from the roll of the garden i.e. the termination, is illegal and the workman is entitled to reinstatement with flail back wages as has been granted by the learned Tribunal. Mr. Dasgupta has further submitted that it is apparent from the facts of this case that the termination of the workman was a termination simpliciter and not punitive and the concerned workman being a permanent employee, the Management is bound to satisfy the conditions precedent stipulated in Section 25F of the Industrial Dispute Act. Regarding the direction issued by the learned Tribunal for payment of back wages as per the scale pay of a driver, Mr. Dasgupta referring to the provision contained in Section 10(4) of the Industrial Dispute Act has submitted that the Tribunal has the power and jurisdiction to pass such an award as the same was incidental to the term of reference made by the appropriate Government. The learned Amicus Curiae in support of his contention has placed reliance on the decision of the apex Court in L. Robert D souza v. The Executive Engineer, Southern Railway anr. reported in AIR 1982 SC 854 and Gammon India Limited v. Niranjan Dass; reported in AIR 1984 SC 500 . 6. The learned Amicus Curiae in support of his contention has placed reliance on the decision of the apex Court in L. Robert D souza v. The Executive Engineer, Southern Railway anr. reported in AIR 1982 SC 854 and Gammon India Limited v. Niranjan Dass; reported in AIR 1984 SC 500 . 6. The High Court in exercise of its jurisdiction cannot interfere with the award passed by the learned Industrial Tribunal unless the Tribunal exceeds its jurisdiction by entering into a question which is not within the terms of reference or its decision is vitiated by error of law apparent on the face of the record or has violated the principles of natural justice in passing the award or where conclusion reached by the Tribunal is entirely arbitrary or perverse. The High Court in exercise of the said jurisdiction cannot interfere with the findings of fact recorded by the learned Tribunal unless the findings of the learned Tribunal are perverse. 7. In the instant case the Management has challenged the award passed by the learned Tribunal on the ground that there being evidence on record that the concerned workman being absent from duty for a long period of 558 days, the learned Tribunal ought not to have held that the Management was not justified in dismissing the workman from service. The said award has also been challenged in regard to the direction for payment of back wages directing the Management to pay the back wage on the pay scale of a tractor driver with effect from the date of termination even though admittedly the concerned workman was engaged on daily wage basis and there was no reference as to whether the Management was justified in refusing the pay to the concerned workman in the scale pay of driver, therefore, the Tribunal has exceeded its jurisdiction by deciding the question which was not within the terms of reference. 8. There is no dispute in the present case that the Respondent No. 3 workman was in service under the Management on permanent basis with effect from 7.7.69 and he was paid on the basis of the daily wages apart from the other benefits admissible to a Tea garden worker. 8. There is no dispute in the present case that the Respondent No. 3 workman was in service under the Management on permanent basis with effect from 7.7.69 and he was paid on the basis of the daily wages apart from the other benefits admissible to a Tea garden worker. The workman was issued with three notices of warning and thereafter a charge sheet was issued on 7.9.87 asking him to show cause as to why he should not be dismissed from service or otherwise punished for habitual absenteeism from 5.8.87 to 6.9.87, but the Management without proceeding further on the said charge sheet struck off the name of the workman from the roll of the garden on 5.7.89. 9. The Management in order to justify their action of striking out the name from the roll has examined the Manager of the Tea Estate and produced the documents including the wage and attendance register of the concerned period. The workman also examined himself before the leaned Tribunal. The learned Tribunal upon appreciation of the evidences on record recorded the finding of fact that the workman concerned has rightly refused to perform the duty as helper to the driver as he was all through engaged by the Management as driver of the tractor even though he had no license for driving such tractor. The said finding of fact recorded by the learned Tribunal cannot be disturbed by this Court in exercise of certiorari jurisdiction unless the perversity is shown. The learned Counsel for the writ Petitioner has not been able to demonstrate any perversity in recording the finding by the learned Tribunal in that respect. It has come out in evidence adduced by the parties before the learned tribunal that the concerned workman was engaged as tractor driver on daily wage basis and was asked to perform duty as helper to the driver, which he has refused to do. The workman having been engaged as driver, the Management was not justified in asking him to perform the duty of the helper of a driver therefore, the workman has rightly refused to perform the said work. It has also come out in evidence that he was attending the duties of the garden but in spite that neither he was allotted with the work of driver nor his presence was marked in the attendance register and no wages was also paid. It has also come out in evidence that he was attending the duties of the garden but in spite that neither he was allotted with the work of driver nor his presence was marked in the attendance register and no wages was also paid. The Tribunal with the aforesaid finding of fact answered the reference in favour of the workman directing reinstatement with full back wages. 10. Viewed from another angle, it appears from the evidence on record, both oral and documentary, that though a charge sheet was issued by the Management on 7.9.87, the Management did not proceed further on the basis of the said charge sheet and the name of the workman was struck off the roll of the garden. The Management witness in his deposition has stated that the Management is ready and willing to take back the workman as daily rated worker without any back wages but disputed his engagement as the driver of the tractor. Therefore, it transpires from the evidence on record that the termination of service of the workman was not on the basis of the charge sheet issued on him but was a termination simpliciter in accordance with the standing order applicable to the garden worker. The question, therefore, is whether striking off the Respondent No. 3 from the roll of the garden, who was a permanent daily rated worker, whether a tractor driver or not, amounts to retrenchment within the meaning of Section 2(00) of the Industrial Dispute Act, if so, whether the Management has complied with the requirements of Section 25(F) of the Act, before such retrenchment. 11. It is the case of the Management before the learned Tribunal that the name of the concerned workman was struck off the roll of the garden for his absence from duty for a long period of time. The workman was not terminated from service by holding any domestic inquiry pursuant to the charge sheet issued by the Management on 7.9.87 as discussed above. The Management has also admitted that the Respondent No. 3 workman was a permanent daily rated worker in the garden since 7.7.69. 12. The workman was not terminated from service by holding any domestic inquiry pursuant to the charge sheet issued by the Management on 7.9.87 as discussed above. The Management has also admitted that the Respondent No. 3 workman was a permanent daily rated worker in the garden since 7.7.69. 12. Section 2(00) defines 'retrenchment', which means the termination by the employer of the service of a workman for any reason what so ever, otherwise than a punishment inflicted by way of disciplinary action, which however, does not include voluntary retirement, retirement of workman on attaining the age of superannuation, termination of service as a result of non-renewal of contract of employment and termination of service of a workman on the ground of contained ill health. Section 25(F) of the Act provides that no workman employed in any nature who has been in continuous service for not less one year under an employer shall be retrenched by the employer until the workman has been given one month notice in writing indicating the reasons for retrenchment and the period of notice has expired, or workman paid in lieu of such notices wages for the period of notice; the workman has been paid retrenchment compensation and notice in prescribed manner served on the appropriate Government. It is not the case of the Management that such retrenchment notice was issued to the workman and retrenchment compensation was paid to him as well as notice was served on the appropriate government as required under the mandatory provision of Section 25(F) of the Industrial Dispute Act. 13. As discussed above, the name of the Respondent No. 3, workman was struck off the roll of the garden on the ground that he was unauthorizedly absent from duty. The workman was not terminated from service as a disciplinary action taken by the Management pursuant to the charge sheet issued on 7.9.87. The Management in fact abandoned the disciplinary proceeding for which the said charge sheet was issued. The definition of retrenchment in Section 2(00) of the Act therefore, covers the action of the Management in striking out the name of the workman from its roll as it means termination of services other than a punishment inflicted by way of a disciplinary action. The definition of retrenchment in Section 2(00) of the Act therefore, covers the action of the Management in striking out the name of the workman from its roll as it means termination of services other than a punishment inflicted by way of a disciplinary action. It is also not the case of the Management that the workman was terminated from service as a result of nonrenewal of contract of employment or for continued ill health. The Management is, therefore, required to fulfill the conditions precedent of Section 25F before terminating the service of the workman concerned i.e. Respondent No. 3 as the same amounts to retrenchment. Admittedly the requirements of Section 25F have not been complied with by the Management and hence the action on the part of the Management in striking out the name of the Respondent No. 3 from the roll of the garden is illegal being contrary to the provision of the Industrial Dispute Act. 14. The Apex Court in L. Robert D'Souza (supra) has held that if the termination of service of a workman is brought about for any reason what so ever it would be retrenchment except if the case falls within any of the excepted categories namely (i) termination by way of punishment inflicted pursuant to disciplinary action; (ii) voluntary retirement of the workman; (iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman conceived contains a stipulation in that behalf (iv) of termination of the service on the ground of continued ill-health. Once the case does not full in any of the accepted categories, the termination of service even if it be according to automatic discharge from service under agreement would nonetheless, be retrenchment within the meaning of expression in Section 2(00). Relying on the decision in Delhi Cloth and General Mills Ltd. case AIR 1978 SC 8 the Apex Court has further held that it must as a corollary follow that if the name of the workman is struck off the roll that itself would constitute retrenchment. The Apex Court in Gammon India Limited (supra) has held that if the requirements of Section 25F of the Industrial Dispute Act are not complied with, before retrenching a workman, bringing about termination of service, such termination of service of an employee would be void-ab-initio. 15. The Apex Court in Gammon India Limited (supra) has held that if the requirements of Section 25F of the Industrial Dispute Act are not complied with, before retrenching a workman, bringing about termination of service, such termination of service of an employee would be void-ab-initio. 15. The decision of the Apex Court in Cheripalli Madar (supra), cited by the learned Counsel for the Petitioner, is not applicable in the facts and circumstances of the instant case. In the said case the High Court has refused to interfere with the order removing the workman from service passed after holding domestic inquiry against the workman as there was no violation of principles of natural justice and also on the ground of maintainability of the writ petition for laches and delay on the part of the workman in approaching the High Court against such award. In the instant case the name of the Respondent No. 3 was struck-off the roll of the garden and he was not terminated from service by holding a domestic inquiry. In Cheripalli Madar, the question of termination from service by way of retrenchment was also not in issue. 16. Viewed from any angle, it is therefore, evident that the learned Tribunal has not committed any illegality in passing the impugned award of reinstatement in service by answering the reference in favour of the workman, with bad wages. However, the direction of the learned Tribunal regarding payment of back wage as per scale pay of the driver with effect from 5.7.89 i.e. the date of termination cannot be held to be legal and valid as the question as to whether the Management was justified in refusing to make payment to the Respondent No. 3 as per scale pay of the driver was not referred to the learned Tribunal. What referred to was whether action of termination was justified and if so, to what relief the workman is entitled to? The power of the learned Tribunal under Section10(4) of the Industrial Dispute Act to decide the incidental matter to the term of reference cannot be stretched to decide the question whether the Management was justified in refusing to make payment as per the scale of pay of a driver, in the absence of any specific reference in that regard. The power of the learned Tribunal under Section10(4) of the Industrial Dispute Act to decide the incidental matter to the term of reference cannot be stretched to decide the question whether the Management was justified in refusing to make payment as per the scale of pay of a driver, in the absence of any specific reference in that regard. Therefore, while maintaining the award of reinstatement of service with full back wages, passed by the learned Tribunal, the direction issued by the learned Tribunal to pay the back wages to the Respondent No. 3 as per scale pay of the driver is set aside. The Petitioner shall, however, pay the back wages to the Respondent No. 3 with effect from 5.7.89 on admissible to the permanent daily rated garden workers with all benefits including enhanced rate of wages payable to such workers from the date of termination i.e. 5.7.89 to the date of reinstatement. The award of the learned tribunal is accordingly modified to the extent indicated above. 17. Before parting, this Court puts on record its appreciation to Mr. Dasgupta, for the able service rendered by him as amicus curiae. 18. The writ petition is accordingly disposed of with the above modification of the award. No cost.