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2015 DIGILAW 1143 (GAU)

Dimbeswar Goswami v. State of Assam

2015-09-07

HRISHIKESH ROY

body2015
JUDGMENT : Heard Mr. A.R. Sikdar, the learned counsel appearing for the petitioner. The management of Ajir Asom (Dainik) Pvt. Ltd. (respondent No.4) is represented by the learned advocate Mr. L.P. Sharma. The respondent Nos.1, 2 and 3 are represented by Mr. J. Handique, the learned Govt. advocate. 2. The petitioner was employed as a proof reader in the office of the Ajir Asom (Dainik) Pvt. Ltd. (hereinafter referred to as the “Ajir Asom”) but his service was terminated on 31.10.2002. In the resultant industrial dispute the conciliation officer furnished his failure report on 26.12.2003 (Annexure-6) and thus the following reference was framed by the Government on 24.05.2004, for consideration by the Industrial Tribunal:- “Whether the management was justified in dismissal of Shri Dimbeswar Goswami, Ex-Employee the workman from his service who had been working in the company since 1994 till his date of suspension despite the management treated his service as on contract with effect from 2001. If not, whether he is entitled for his re-instatement or any other relief thereon?” 3. According to the workman, he was appointed on 17.10.1994 as proof reader in Ajir Asom, but as per the verbal instruction of the management, he was made to serve in the group newspaper “The Sentinel”, in the same office building. On the charge of misappropriation of Rs.140/- from the payment of Rs.300/- made by Mr. Pradip Kr. Deka for inserting an advertisement in the Sentinel newspaper, the explanation of the workman was that additional amount was given by Mr. Deka to courier the newspaper to Ahemdabad where Mr. Deka is employed as the Manager of the Ashima Textiles. The workman produced the clarificatory letter of 17.06.2002 (Exbt.-4) written by the advertiser himself, who stated that the workman had not overcharged him, but he was paid Rs.300/- which included both the advertisement and courier charges. Accordingly the workman contended that since the advertiser himself clarified the extra payment as courier charge, the case of misappropriation of Rs.140/- is not made out and thus the penal action against the workman on charge of misappropriation is challenged. Accordingly the workman contended that since the advertiser himself clarified the extra payment as courier charge, the case of misappropriation of Rs.140/- is not made out and thus the penal action against the workman on charge of misappropriation is challenged. The further case of the workman is that he was employed by Ajir Asom since many years before the contract agreement was executed on 01.02.2002 and therefore it is argued that the long service employee can’t be terminated without following due process and without payment of his GPF and ESI dues, deducted from the workman’s salary since 1997-98. 4. On the other hand, the management contended that the workman was an employee of Ajir Asom and he was not authorized to accept any advertisement for the Sentinel newspaper and since he received Rs.300/- whereas the advertisement charge is Rs.240/- (@Rs.10/- for 24 words), the management rightly ordered for termination since it is a case trust deficit. The deposit of Rs.160/- and Rs.140/- made in 2 installments by the workman in the Sentinel newspaper account, was projected as the admission of the workman on receiving excess payment. 5. The learned Industrial Tribunal considered the workman to be a contractual appointee for 1(one) year w.e.f. 01.02.2002 and on that basis the right of the management to terminate the contractual service was answered in favour of the management by declaring that regular domestic enquiry applicable for non-contractual employee, is unnecessary and termination can be ordered as per the contractual terms. Moreover since the excess receipt by the workman tarnishes the goodwill of the company, it was held that the workman does not deserve to continue with the company. 6.1 Assailing the legality of the finding given by the learned Industrial Tribunal, Mr. A.R. Sikdar, the learned counsel submits that a perverse award was rendered by the learned Tribunal since it failed to take into account the evidence of the management witness, i.e. S. Chakraborty, as the accountant’s evidence clearly reflected that the workman was in employment with Ajir Asom since 1997-98 as his GPF and ESI were deducted since last several years. The accountant also testified in his cross-examination that the workman was not paid his dues when his service was terminated. 6.2 The letter given by the advertiser Pradip Kr. Deka on 17.06.2002 (Exbt.-4) is also read by Mr. The accountant also testified in his cross-examination that the workman was not paid his dues when his service was terminated. 6.2 The letter given by the advertiser Pradip Kr. Deka on 17.06.2002 (Exbt.-4) is also read by Mr. Sikdar to project that the Tribunal ignored and misread the evidence to erroneously conclude that the workman was guilty of misappropriation. 6.3 The learned counsel further submits that a stigmatic termination order was issued on charge of misappropriation and therefore the Tribunal committed a serious error by observing that a regular domestic enquiry is not mandatory since the workman was a recently appointed contractual employee and thus his past service since 1997-1998 was glaringly overlooked. 6.4 As the workman was terminated on charge of misappropriation and the termination notice was published in the daily newspaper Ajir Asom, Mr. Sikdar argues that it is not a termination simpliciter and such stigmatic order cannot be passed without a full-fledged domestic enquiry and furnishing the enquiry report to the affected workman. 7.1 On the other hand, Mr. L.P. Sharma, the learned counsel submits that the management took into account the 1(one) year contractual appointment made on 31.10.2002 and because it was a case of misappropriation as found by the Enquiry Officer, the service of the workman was rightly terminated. 7.2 As regards the unpaid dues, Mr. Sharma submits that the same can be ordered to be paid even now. 8. The reference made under Section 10 of the Industrial Disputes Act clearly indicated that the workman was working in the company since 1994 till he was suspended. Therefore the accountant S. Chakraborty’s evidence as a management witness is very much relevant since he testified that the GPF and ESI from the workman was deducted since 1997-98. But ignoring this vital evidence of the management witness, the Tribunal declared the workman to be a contractual employee appointed for 1(one) year, under the contract dated 01.02.2002. When evidence was available to show that the workman was engaged since 1997-98, an appropriate conclusion should have been drawn through reconciliation of the contradictory evidence but unfortunately this was not done by the learned Tribunal. 9. Moreover, the categorical exoneration of the workman by the advertiser himself through his written communication of 17.06.2002 (Exbt.-4) was deliberately ignored to conclude that the workman had misappropriated the money received from the advertiser. 9. Moreover, the categorical exoneration of the workman by the advertiser himself through his written communication of 17.06.2002 (Exbt.-4) was deliberately ignored to conclude that the workman had misappropriated the money received from the advertiser. When the person who tendered the Rs.300/- himself states that additional amount was paid to courier the newspaper to Ahmedabad, this was a most vital piece of evidence and hence Exbt.-4 should have received due consideration of the learned Tribunal. But unfortunately there is no discussion of the Exbt.-4 letter which clearly exonerated the workman, from the charge of misappropriation. 10. In my perception this was not a case of termination simpliciter but was a case of stigmatic removal and for a long serving employee at least from 1997-98, the management was obliged in law to afford a fair opportunity to the workman, to prove his innocence. 11. On the legality of termination ordered by the management of Ajir Asom, it must also be noted that the workman was not formally appointed with the Sentinel newspaper, but he was employed under the Ajir Asom but was verbally instructed to work in the Sentinel office of the same group. Now if the stand of the management is that the workman is not employed with the Sentinel, how could an act of misconduct in respect of the Sentinel newspaper can be a matter of termination in terms of the employment with Ajir Asom. This shows non-application of mind by the learned Tribunal to relevant material. 12. Thus taking into account all the aforesaid facts and circumstances and noticing that a perverse conclusion was reached by the learned Industrial Tribunal through its impugned award dated 14.08.2007 (Annexure-7), the same is held to be unsustainable and thus reinstatement of the workman is ordered. But since no service was received by the management during the interregnum, the payment of back wages is confined to 25% of the payable dues. If for one reason or another, the management is unwilling to reinstate the petitioner, in lieu of reinstatement, a lump sum ex-gratia compensation of Rs.5,00,000/- is ordered to be paid to the workman, who was drawing Rs.4,454/- P.M. when his service was terminated in October, 2002. If the management opts for compensation instead of reinstatement (with 25% back wages), the payment must be disbursed within 3(three) months i.e. on or before 07.12.2015. If the management opts for compensation instead of reinstatement (with 25% back wages), the payment must be disbursed within 3(three) months i.e. on or before 07.12.2015. If there is any delay in disbursal, the Rs.5 lakh should be paid with 6% interest from 07.12.2015 until it is paid. It is ordered accordingly. 13. With the above order, the case stands allowed. No cost.