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2014 DIGILAW 1019 (GAU)

Ghooronia Tea v. Presiding Officer, Labour Court

2014-11-26

BIPLAB KUMAR SHARMA

body2014
JUDGMENT Biplab Kumar Sharma, J. 1. This writ petition is directed against the judgment and order dated 20.7.2007 of the learned Labour Court, Assam at Dibrugarh in Reference Case No. 6/2003. By the said award while setting aside the order of dismissal of the workman from service with effect from 9.11.2000, it has been held that he is entitled to get reinstated in service with full back wages and other benefits. Although, the award was passed on 20.7.2007, but the Management of the petitioner Tea Estate approached this Court by filing this writ petition on 11.5.2009. However, it is submitted that since the award was notified only on 31.3.2008, the writ petition could be filed only thereafter. Certain other explanation, such as, administrative difficulties etc has also been pleaded in the writ petition to justify the delay in filing the writ petition. He workman in question represented by the respondent No. 2 namely Sri Champak Kumar Bezbaruah while was serving as Factory Supervisor was issued with the notice dated 7.7.2000 asking him to explain as to why disciplinary action should not be taken against him. In the notice no reason was assigned as to why he was required to submit show cause reply under threat of disciplinary action. However, it was indicated at the top of the letter that the show cause notice was regarding misappropriation of green tea leafs received from outside. No other particulars had been furnished. 2. The workman replied to the show cause notice vide Annexure-B letter dated 11.7.2000. Thereafter he was charge sheeted vide Annexure-C dated 17.7.2000 alleging the following charges: "That you in collusion with the supplier and transporter of the bought leaf from various suppliers have, for your wrongful personal gains got inflated the figures of green leave received as per the Table shown above (Table-II) reconciled with the challan figure as per Table No. I thus misleading the management and also causing huge financial loss to the company to the tune of approx. 68,794.00 for the period 25.4.2000 to 15.6.2000. That you, knowing fully well about your misdeeds have most clandestinely endorsed the signature of the Manager thereby trying to erase evidence of your wrongful acts of adding on to the green leaf purchase when the actual leaf did not exist at the point of receiving the same in the factory. 68,794.00 for the period 25.4.2000 to 15.6.2000. That you, knowing fully well about your misdeeds have most clandestinely endorsed the signature of the Manager thereby trying to erase evidence of your wrongful acts of adding on to the green leaf purchase when the actual leaf did not exist at the point of receiving the same in the factory. That the above acts of yours, if proved, amounts to theft fraud & dishonesty in connection with the business of the Company thereby causing loss to the tune of almost Rs. 1,20,780 worth Black Tea which is an act that constitutes gross misconduct under the standing Orders in force on the estate. The above acts of yours inspires the management to have a loss in confidence in your ability as Factory Supervisors as the faith and trust imposed upon you by the management have been belied by your irresponsible deliberate wrongly acts for your personal gains. I, therefore, call upon you to explain in writing by 21.7.2000 as to why disciplinary action should not be taken against you." 3. In response to the said charges, the petitioner submitted his reply denying the charges leveled against him. However, the management being not satisfied with the reply so furnished by the petitioner ordered for a domestic enquiry. In due course, the enquiry was conducted and the Enquiry Officer by his report dated 18.9.2000 (Annexure-F1) held that the workman could not demolish the evidence of the management and as such the evidence would stand. Thereafter, the management having imposed the penalty of dismissal from service with effect from 9.11.2000, the petitioner raised an Industrial dispute, on the basis of which the Government in the appropriate department made the following reference: "(1) Whether the management of Ghoorania T.E. is justified in dismissing the service of Shri C.K. Bezbaruah w.e.f. 09.11.2000? (2) If not, whether he is entitled to re-instatement with all back wages and other benefits in lieu thereof?" On receipt of the reference, the same was registered and numbered as Reference Case No. 6/2003 and by the impugned award dated 20.7.2007, the reference having been answered in favour of the workman, the management filed the instant writ petition. 4. I have heard Mr. P.J. Saikia, learned counsel for the petitioners as well as Ms. 4. I have heard Mr. P.J. Saikia, learned counsel for the petitioners as well as Ms. A. Bhattacharjee, learned counsel for the respondent No. 2.I have also perused the entire materials on record including the records received from the learned Labour Court. 5. Mr. Saikia, learned counsel for the petitioner has submitted that the Labour Court committed gross irregularity and illegality in setting aside the order of dismissal without appreciating the evidence on record. According to him, the learned Labour Court failed to appreciate the evidence on record including the materials pertaining to the domestic enquiry. It will be pertinent to mention here that earlier by a preliminary award dated 14.2.2005, learned Labour Court held that the domestic enquiry was not properly done and that the findings recorded were all perverse and in violation of the principles of natural justice. By the said preliminary award it was held that the enquiry was not valid in the eye of law. The management i.e. the writ petition accepted the said preliminary award by not raising any grievance against the same. 6. After the aforesaid preliminary award the learned Labour Court allowed the parties to adduce evidence and thereafter on the basis of the evidence on record passed the impugned award setting aside the order of dismissal of the workman with the direction to reinstate him in service with full back wages. According to Mr. Saikia, learned counsel for the petitioner, there could not have been any direction for reinstatement of the workman in service with full back wages on the basis of the evidence on record which clearly established the charges against the workman. 7. As to what was the charge against the workman has been notice above. Ms. Bhattacharjee, learned counsel representing the respondent No. 2 submits that the findings recorded by the learned Labour Court being on the basis of the evidence on record cannot be interfered with exercising the writ jurisdiction under Article 226 of the Constitution of India. She has also raised the question of delay in filing the writ petition. 8. Mr. Saikia, learned counsel for the petitioner placing reliance on the decision of the Apex Court reported in AIR 1973 SC 1227 (The Workman of M/s. Firestone Tyre & Rubber Co. She has also raised the question of delay in filing the writ petition. 8. Mr. Saikia, learned counsel for the petitioner placing reliance on the decision of the Apex Court reported in AIR 1973 SC 1227 (The Workman of M/s. Firestone Tyre & Rubber Co. of India P. Ltd. v. The Management & Others) submits that since as per the provision of Section 11A of the Industrial Disputes Act, 1947, the Labour Court was bound to consider all the materials including the materials available in respect of the domestic enquiry. He submits that it was incumbent on the part of it, but the said materials were not taken into consideration while passing the impugned award. 9. Section 11-A lays down the powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workman. For a ready reference, the said provision is quoted below: "11 A. powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workman - where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceedings under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter." 10. Interpreting the said provision, the Apex Court in M/s. Firestone Tyre & Rubber Co. (supra) held thus: "30. This will be a convenient stage to consider the contents of section 11A. To invoke section 11A, it is necessary that an industrial dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication. Interpreting the said provision, the Apex Court in M/s. Firestone Tyre & Rubber Co. (supra) held thus: "30. This will be a convenient stage to consider the contents of section 11A. To invoke section 11A, it is necessary that an industrial dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication. In the course of such adjudication, the Tribunal has to be satisfied that the, order of discharge or dismissal was not justified. If it comes to such a conclusion, the Tribunal has to set aside the order and direct reinstatement of the workman on such terms as it thinks fit. The Tribunal has also power to give any other relief to the work-man including the imposing of a lesser punishment having due regard to the circumstances. The; proviso casts a duty on the Tribunal to rely only on the materials- on record and prohibits it from taking any fresh evidence. Even a mere reading of the section in our opinion, does indicate that A change in the law, is laid, down by this Court, has been effected. According to the workmen the entire law has been completely altered; whereas according to the employers, a very minor change has been effected giving power to the Tribunal, only to alter the punishment, after having hold that the misconduct is proved. That is, according to the employers, the Tribunal has a mere power to alter the punishment after it holds that the misconduct is proved. The workmen, on the other hand, claim that the law has been rewritten. 43. We will now pass on to consider the proviso to Section 11A. Mr. Deshmukh relied on the terms of the proviso in support of his contention that it is now obligatory to hold a proper domestic enquiry and the Tribunal can only take into account the materials placed at that enquiry. The counsel emphasised that the proviso places an obligation on the Tribunal 'to rely only on the materials on record' and it also prohibits the Tribunal from taking 'any fresh evidence in relation to the matter'. According to him, the expression materials on record' refers to the materials available before the management at the domestic enquiry and the expression 'fresh evidence' refers to the evidence that was being adduced by an employer for the first time before the Tribunal. According to him, the expression materials on record' refers to the materials available before the management at the domestic enquiry and the expression 'fresh evidence' refers to the evidence that was being adduced by an employer for the first time before the Tribunal. From the wording of the Proviso, he wants us to infer that the right of an employer to adduce evidence for the first time has been taken away, as the Tribunal is obliged to confine its scrutiny only to the materials available at the domestic enquiry. 44. We are not inclined to accept the above contention of Mr. Deshmukh. The Proviso specifies matters which the Tribunal shall take into account as also matters which it shall not. The expression 'materials on record, occurring in the Proviso, in our opinion, cannot be confined only to the materials which were available at the domestic enquiry. On the other hand, the 'materials on record' in the Proviso must be held to refer to materials on record before the Tribunal. They take in- (1) the evidence taken by the management at me enquiry and the proceedings of the enquiry, or (2) the above evidence and in addition, any further evidence led before the Tribunal, or (3) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workman contra. The above items by and large should be considered to be the 'materials on record' as specified in the Proviso. We are not inclined to limit that expression as meaning only that material that has been placed in a domestic enquiry. The Proviso only confines the Tribunal to the materials on record before it as specified above, when considering the justification or otherwise of the order of discharge or dismissal. It is only on the basis of those materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct justifies the punishment of dismissal or discharge. It is only on the basis of those materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct justifies the punishment of dismissal or discharge. It also prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the misconduct or for altering the punishment from the Proviso it is not certainly possible to come to the conclusion that when once it is held that an enquiry has not been held or is found to be defective, an order reinstating the workman will have to be made by the Tribunal. Nor does it follow that the Proviso deprives an employer of his right to adduce evidence for the first time before the Tribunal. The expression 'fresh evidence' has to be read in the context in which it appears, namely, as distinguished from the expression materials on record. If so read, the Proviso does not prevent any difficulty at all." 11. In the instant case, the domestic enquiry was held not valid for the reasons recorded in the preliminary award dated 14.2.2005 which are as follows: "(i) the definite charge of collusion with the suppliers and transporters of the bought leaf from various suppliers for wrongful gain could not be proved. Not a single supplier and transporter of green leaf had been produced to establish the collusion and the manners of dishonest intentions and also causing the inflation; (ii) Not a single document or Weighment Register of the green leaf had been exhibited in the enquiry. As per the statement of the particular witness namely Agni Nayak, there are two different handwritings in the Weighment Register. However, another witness Shri Mridul Baruah did not corroborate Agni Nayak that the workman himself had inflated the figures. (iii) The management failed to prove misappropriation by the workman by not producing the day to day accounts. (iv) The complaint that was lodged alleging excess inflated weight was not exhibited along with the Weighment Register. (v) The Enquiry Officer believed the statement of the witnesses without verifying the relevant documents. (vi) The Enquiry Officer admitted in his enquiry report that there was nothing to show that the list of witnesses was given to the workman prior to the enquiry." 12. (v) The Enquiry Officer believed the statement of the witnesses without verifying the relevant documents. (vi) The Enquiry Officer admitted in his enquiry report that there was nothing to show that the list of witnesses was given to the workman prior to the enquiry." 12. Because of all the aforesaid reasons, the learned Labour Court held that the domestic enquiry not valid and passed the preliminary award requiring the management to adduce evidence in the proceeding before the learned Labour Court. As the record would revel, before the learned Labour Court, the management examined three witnesses. On perusal of their evidence, it is absolutely clear that none of the witness could prove the charge leveled against the workman. In the cross examination, all the witnesses categorically stated that they did not have any personal knowledge of the purported inflation made by the workman and that they had deposed on hearsay evidence. 13. Above being the position, I see no infirmity in the impugned final award dated 20.7.2007 in Reference Case No. 6/2003. As in the preliminary award, in the final award also, the learned Labour Court upon appreciation of the evidence on record found that the charge was not established against the workman. The learned Labour Court referring to the preliminary award in reference to the domestic enquiry has held that the workman was not provided with the adequate opportunity to defend himself. It was found that although a specific request was made by the workman to provide him with the right to cross examine all the witnesses cited by the management in support of the charge, but the management did not accede to the said request and left aside the 11 witnesses, thereby causing prejudice to the defence of the workman. 14. The decision on which the learned counsel for the petitioner has placed reliance and noted above, is of no help to the case of the petitioner. Apart from the fact that the provision of Section 11A of the Act relates to the power of the Labour Court, Tribunal etc. to give appropriate relief to the workman in case of discharge or dismissal from service and towards that end may place reliance on materials on record, the said provision will have to be understood in the context in which it has been made. to give appropriate relief to the workman in case of discharge or dismissal from service and towards that end may place reliance on materials on record, the said provision will have to be understood in the context in which it has been made. As noted above, even the materials on record do not support the case of the Management. 15. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed, without however, any order as to costs. Registry may transmit the case records to the Tribunal. Petition dismissed.