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Gauhati High Court · body

2016 DIGILAW 474 (GAU)

Dhruba Kumar Dutta v. Management of Thanai Tea

2016-05-26

UJJAL BHUYAN

body2016
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. A. Dasgupta, learned Sr. Counsel for the petitioner and Ms. R. S. Deori, learned counsel for respondent No. 1. 2. By filing this petition under Article 226 of the Constitution of India petitioner seeks quashing of award dated 31.12.2009 passed by the learned Labour Court, Dibrugarh in Reference Case No. 14/2007 holding that petitioner had committed a misconduct under the standing orders in force justifying termination of his service. Further prayer made is for a direction to the respondents to re-instate the petitioner in service with full back wages. 3. Petitioner is the workman and respondent No. 1 is the management. At the relevant point of time, petitioner served as Provident Fund Clerk at Thanai Tea Estate. On 31.05.2006 between 4:30 p.m. to 5:30 p.m., he submitted resignation from the tea estate before the Manager under controversial circumstances. Management accepted the resignation of the petitioner w.e.f. 01.06.2006. This gave rise to an industrial dispute. Conciliation proceeding ended in failure. Thereafter, the appropriate Government i.e. the Govt. of Assam in the Labour and Employment Department made a reference to the Labour Court, Dibrugarh for adjudication of the following issues:- “(a) Whether the management of Thanai T.E., are justified in terminating the workman from his service of the Company without holding domestic enquiry to establish alleged misconduct even after withdrawing his resignation? (b) If not, whether the workman is entitled for re-instatement with full back wages and other benefits? (c) If not, what relief the workman is entitled to?” 4. On receipt of the same Reference Case No. 14/2007 was registered and upon receipt of notice both management and workman submitted their respective written statements. 5.1. In its written statement, specific stand taken by the management was that service of the workman was not terminated by the management; rather, the workman had tendered his resignation voluntarily for reasons best known to him. It is stated that on the day of resignation at around 4:30 to 5:30 p.m. several workers of the tea estate had assembled in the compound of the Manager's Office for the purpose of issuance of protective cloths on that day. At that time, the workman had entered into the Office of the Manager and asked the latter to accept his resignation letter. At that time, the workman had entered into the Office of the Manager and asked the latter to accept his resignation letter. The workman requested the management to accept his resignation w.e.f. 01.06.2006 and also to drop him outside the tea estate so that he could escape the humiliation that might be heaped upon him by the workers. It is further stated that the management had asked the workman to reconsider his resignation but the workman was adamant. Having no other alternative management accepted the resignation w.e.f 01.06.2006 as per request of the workman. As per the written statement, after acceptance of the resignation letter, one woman worker of the tea estate lodged a complaint against the workman together with six numbers of currency notes in ragged condition. 5.2. According to the management, it was alleged that the workman tried to swallow the said currency notes for the reasons best known to him. Thereafter, the management drove the workman in their vehicle and dropped him outside the tea estate. It is the pleaded case of the management that the resignation tendered by the workman was voluntarily made and hence question of terminating him from service did not arise. Therefore the issues raised in the reference were redundant calling for no adjudication. 6. In his written statement, the workman stated that he served in the tea estate w.e.f. 01.01.1989. On 31.05.2006 at around 5:30 p.m. after office hours the Manager called him to his office where he forcibly obtained resignation letter from the petitioner in collusion with a section of labourers who had gathered in front of the Manager's office. The pen and paper were brought by the Assistant Manager where-after petitioner was compelled to write the resignation letter as per dictation of the Assistant Manager had in presence of the garden Manager. It was stated that the Manager initially threatened the petitioner that if within 5 minutes he did not write the resignation letter, he would be handed over to the labourers. In such circumstances and fearing for his life, petitioner wrote the resignation letter. Manager also took signature of about 20 numbers of labourers and 3/4 of his staff as witnesses to the resignation letter. Thereafter, management took the petitioner in the jeep of the garden Manager and dropped him off at Dikom town. In such circumstances and fearing for his life, petitioner wrote the resignation letter. Manager also took signature of about 20 numbers of labourers and 3/4 of his staff as witnesses to the resignation letter. Thereafter, management took the petitioner in the jeep of the garden Manager and dropped him off at Dikom town. According to the petitioner, he was in a state of shock and after recovering from the initial shock he sent a letter on 03.06.2006 addressed to the Manager stating that the resignation letter was obtained by coercion and that he had withdrawn his resignation. Thereafter, statements were made relating to the industrial dispute. 7. Management side examined three witnesses in support of their case namely, MW 1- Phulmotia Panika, a permanent worker of the tea estate; MW 2- Kundan Rajowar, Secretary of the garden unit of the Assam Chah Mazdoor Sangha (ACMS); MW 3- Sasanka Barua, Assistant Manager of the tea estate. 8. On behalf of the workman, petitioner examined himself as WW 1. A number of documents were also exhibited including Ext. 1, the alleged complaint of MW 1 regarding demand of bribe by the petitioner for releasing her family pension and Ext. A the alleged resignation letter of the petitioner. 9. After considering the evidence adduced, learned Labour Court came to the definite conclusion that the workman did not resign from his service voluntarily; it was not under normal circumstances. In other words, it was held that resignation tendered by the workman was not a resignation in the eye of law. Learned Labour Court also recorded the finding that the management did not hold any domestic enquiry against the workman on the ground that he had voluntarily resigned from his service. However, learned Labour Court proceeded further in the matter and framed a question for its consideration as to whether on the basis of the evidence on record the management was able to establish the charge levelled against the workman on merit justifying termination from service. Thereafter, considering the evidence tendered by the three management witnesses, learned Labour Court held that on the basis of the evidence on record management was able to establish the charge levelled against the workman on merit and that the workman had committed a gross misconduct under clause 10(a)(3) of the standing orders by taking a bribe of Rs. Thereafter, considering the evidence tendered by the three management witnesses, learned Labour Court held that on the basis of the evidence on record management was able to establish the charge levelled against the workman on merit and that the workman had committed a gross misconduct under clause 10(a)(3) of the standing orders by taking a bribe of Rs. 1000.00 from the woman workman for releasing her family pension amounting to Rs.4050.00. On that basis, learned Labour Court held that the management was justified in terminating the workman from service of the company. In view of such finding, question of reinstatement of the workman or grant of any benefit did not arise. 10. As noticed above, management in their written statement had specifically pleaded that the workman had voluntarily submitted his resignation and despite persuasion by the management he refused to budge from his stand which compelled the management to accept the resignation. In the written statement, no plea was taken by the management that independent of the resignation of the workman, the allegations brought against the workman by a woman labour amounted to gross misconduct as per the standing orders in force which would justify termination of such workman from service. 11. In Delhi Cloth and General Mills Company v. Ludh Budh Singh reported in (1972) 1 SCC 595 the Apex Court held that if no domestic enquiry had been held by the management or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightaway adduce evidence before the Industrial Tribunal or the Labour Court justifying its action. In such a case the Industrial Tribunal or the Labour Court has to consider the evidence so adduced on merit and give a decision thereon. 12. On the right of the management to adduce further evidence to substantiate the charge or charges against the workman after deciding the preliminary issue of validity of the domestic enquiry against the management, the Supreme Court in Sambhu Nath Goyal v. Bank of Baroda reported in (1983) 4 SCC 491 had laid down certain principles which in effect stated that the management should make the request for opportunity to adduce evidence in case the domestic enquiry was held to be invalid in the written statement itself. If such a request was not made at the initial stage, it cannot be allowed to do so at any later stage of the proceeding by filing application which would inevitably delay adjudication of the proceeding thereby frustrating the very purpose and object of the Industrial Disputes Act, 1947. In Karnataka State Road Transport Corporation v. Lakshimidevamma (Smt) & Anr reported in (2001) 5 SCC 43 the Supreme Court considered all the relevant decisions on the subject and summed up the position by holding that by the judgment in Sambhu Nath Goyal (supra), the management was given the right to adduce evidence to justify its domestic inquiry only if it had reserved its right to do so in the objection filed to the reference made under Section 10 of the Industrial Disputes Act, 1947 or in the application made by it under Section 33 of the said Act, meaning thereby that the management had to exercise its right of leading fresh evidence at the first available opportunity and not at any time thereafter during the proceeding before the Industrial Tribunal/Labour Court. It has been held that the procedure laid down in Sambhu Nath Goyal (supra) is just and fair and the law laid down therein is the correct law on the point. 13. Having analyzed the legal position as above, relevant portion of the impugned award may be adverted to, which reads as under:- “Thus by forcing the workman to resign from his service the management in fact terminated him from his service without holding any domestic enquiry. The question now is whether the other management evidence on record is able to establish the charge levelled against the workman on merit. What is the charge levelled against the workman? As has been mentioned earlier the management did not issue any charge sheet to the workman and it also did not hold any domestic enquiry in this case. However from the evidence on record discussed above it becomes clear that the charge against the workman was that on 31.05.2006 he took a bribe of Rs. 1000/- from Phulmotia Panika for releasing the family pension of her deceased husband amounting to Rs. 4050/-. However from the evidence on record discussed above it becomes clear that the charge against the workman was that on 31.05.2006 he took a bribe of Rs. 1000/- from Phulmotia Panika for releasing the family pension of her deceased husband amounting to Rs. 4050/-. Now there is no dispute regarding the fact that the Standing Orders in force in Thanai T.E. is Standing orders for Tea Estate in Assam in the Member ship of the Assam & Surma Valley Branches of the India Tea Association. On perusal of the said Standing Orders it is seen that the said alleged act of the workman amounted to a gross misconduct under clause 10(a)(3) of the Standing Orders in force in the T.E. which goes as under:- 10. Acts or Omissions which constitute misconduct. (a) The following acts or omissions shall constitute gross misconduct: 1. .............................. 2. ............................. 3. Taking giving, offering or soliciting bribe or any illegal gratification whatsoever. Thus the said act on the part of the workman-if proved shall constitute a gross misconduct under Clause 10(a)(3) of the Standing Orders in force in the T.E. Now let us analyze the evidence on record discussed above to see whether the said evidence supports the charge levelled against the workman on merit. In her evidence the alleged victim of the incident Phulmotia Panika (MW 1) says that one day about three years earlier when she was working at the T.E. the workman send for her and when with the permission of the hazira babu she went there the workman demanded Rs. 2000/- from her in lieu of paying her Rs.4050/- on account of family pension of her deceased husband and thereafter a few days later after taking a loan of Rs.1000/- from a shop she went to the workman and gave him Rs. 1000/- whereupon he released the family pension of her deceased husband to her. Nothing has been elicited during her cross-examination to make her said claims unworthy of credit. 1000/- whereupon he released the family pension of her deceased husband to her. Nothing has been elicited during her cross-examination to make her said claims unworthy of credit. However according to her during the period after the workman demanded the amount from her and before she made the payment to the workman she met MW 2 Kundan Rajowar, Secretary of the garden unit of the Sangha and told him about the incident and after consulting the management MW 2 told her that the management had asked her to file a written complaint but as mentioned earlier in this judgment that part of her evidence is not reliable. Then she says that thereafter Ext.1 complaint was written for her by the Manger of the T.E. mentioning the denomination numbers of the currency notes taken by her on loan for giving to the workman. Her evidence further reveals that after the office hours of the relevant day (i.e. the day when she paid the money to the workman). On being called by the Manager of the T.E. she along with the Asst. Manager (MW 3) and all the office staff including the workman went there and she formally handed over Ext.1 to the Manger and thereafter on being asked by the Manager to return the money so taken by him to her the workman ran out therefrom but could not fled due to presence of labourers outside. She further says that the workman put the currency notes taken from her in his mouth but could not swallow it and it was taken out of his mouth. She in-dentifies Ext. 2 to Ext 7 as those currency notes. Nothing has been elicited during her cross-examination to make her above claims unreliable. MW 2 corroborates the claim of MW 1 regarding her meeting him prior to the relevant date (i.e. 31.05.2006) and informing him about the incident and also about his discussing the matter with the management. However the above discussion shows that the said part of the evidence of MW 1 is not reliable and so that above claims of MW 2 also cannot be relied upon. Then MW 2 claims that he wrote Ext. 1 complaint for MW 1 mentioning the denomination numbers of the currency notes brought by her to pay to the worker but according to MW 1 Ext. Then MW 2 claims that he wrote Ext. 1 complaint for MW 1 mentioning the denomination numbers of the currency notes brought by her to pay to the worker but according to MW 1 Ext. 1 was written by the Manger of the T.E. So this claim of MW 2 is also not reliable. Thereafter MW 2 corroborates the claim of MW 1 about her giving Rs. 1000/- to the workman and the workman releasing the family pension of her deceased husband to her. Admittedly he was not present at the spot where the 'giving & taking' took place but according to him he was present at the office at that time. Being the Secretary of the garden unit of the Sangha I find nothing unusual in his said claim and about his coming to know about the said 'giving & taking'. MW 2 also fully corroborates the later part of the incident taking place at the Chamber of the Manager of the T.E. finally leading to the recovery of the money from the workman who tried to swallow it and nothing has been elicited during his cross examination to make his said claims unreliable. MW 3 does not say anything in his evidence regarding the first half of the incident. However he corroborates the claim of MW 1 and MW 2 that on being called by the Manger of the T.E. he went to his office chamber. He corroborates the claim of MW 1 regarding the incident taking place there leading to the recovery of the money from the workman which he tried to swallow. He clearly says that the denomination number of the currency notes so recovered from the workman were the same as the denomination number of the currency notes mentioned in Ext. 1 complaint submitted by MW 1. MW 3 also clearly says that the workman took the said money from MW 1 Phulmotia as bribe for releasing the family pension amount of her deceased husband. Though he does not specifically say how he came to know about it the circumstances of the case has clearly established that he came to know about that fact from Ext. 1 complaint and from the Manager of the T.E. and also from the other persons present at the chamber of the Manager of the T.E. at that time. Though he does not specifically say how he came to know about it the circumstances of the case has clearly established that he came to know about that fact from Ext. 1 complaint and from the Manager of the T.E. and also from the other persons present at the chamber of the Manager of the T.E. at that time. Nothing has been elicited during his cross examination to make his claims regarding the incident unreliable. Thus the above discussion of the evidence on record and the circumstances revealed therefrom shows that all the MWs have corroborated the claim of each other that on 31.05.2006 workman did take Rs.1000/- from the Phulmotia Panika as bribe for releasing the family pension of her deceased husband. On the other hand adducing evidence for the workman side the workman himself (MW1) narrates a different story regarding the incident. In his evidence he also claims that the allegation that he took Ext. 2 to Ext. 7 currency notes from Phulmotia Panika, the claim of MW 1 Phulmotia Pnaika that he took Rs. 1000/- from her and also the claim made by Phulmotia Panika in Ext. 1 complaint and by MW 2 Kundan Rajowar in his evidence are false. He also claims that in order to appoint one Eunus Ahmed one 4th grade employee of the T.E.-who was own man of the Manager of the T.E.-as a clerk of the T.E. the manager of the T.E. in conspiracy with others removed him from his service. However his such averments and denials are not corroborated by any other witness. Hence the said facts are not satisfactorily established. During his cross-examination MW 3 admits that no document was made regarding the recovery of the currency notes from the workman and that the currency notes do not bear the signature of anyone of the management. Hence it has been argued that the currency notes were not recovered from the workman. However, this is not a criminal case regarding preparation of a seizure list or the seized currency notes also do not require signature of anyone of the management officials. The other evidence on record has satisfactorily established that the said currency notes were indeed recovered from the workman. In view of the above discussion I find and hold that the other management evidence on record is able to establish the charge levelled against the workman on merit. The other evidence on record has satisfactorily established that the said currency notes were indeed recovered from the workman. In view of the above discussion I find and hold that the other management evidence on record is able to establish the charge levelled against the workman on merit. Hence I find and hold that the charge levelled against workman Dhruba Dutta that on 31.05.2006 he took a bribe of Rs. 1000/- from the workman for releasing the family pension of her deceased husband amounting to Rs. 4050/- is satisfactorily established. In view of the above, I find and hold that on 31.05.2006 the workman did commit a gross misconduct under Clause 10(a)(3) of the Standing Orders in force in the T.E. Considering the nature and gravity of the misconduct committed by the workman I am of the considered view that the punishment of termination from service imposed by the management on the workman is not liable to the interfered with by this Court U/S 11-A of the I.D. Act. In view of the above I find and hold that the management of Thanai T.E. justified in terminating the workman from the service of the Company. The issue is decided accordingly. Issue Nos. 2 & 3: In view of the discussion made and the decision arrived at in respect of issue No. 1, I find and hold that the workman is not entitled to reinstatement with full back wages and other benefits or any other relief. The issues are decided accordingly. From the above it is held that the management of Thanai T.E. are justified in terminating the workman from the service of the Company and that the workman is not entitled to reinstatement with full back wages and other benefits or any other relief.” 14. A careful scrutiny of the evidence adduced by the three management witnesses would show that the entire emphasis was on establishing the fact that resignation tendered by the petitioner was voluntary and that there was no coercion or force compelling him to submit his resignation. The other allegation regarding demand and acceptance of bribe of Rs. 1000.00 from MW 1 for release of her family pension was incidental to the pleaded case of the management that resignation was voluntary. As already noticed above, the written statement submitted on behalf of the management was totally silent regarding the alleged misconduct of the petitioner. The other allegation regarding demand and acceptance of bribe of Rs. 1000.00 from MW 1 for release of her family pension was incidental to the pleaded case of the management that resignation was voluntary. As already noticed above, the written statement submitted on behalf of the management was totally silent regarding the alleged misconduct of the petitioner. Rather it was pleaded that when the petitioner had voluntarily resigned, question of terminating him from service did not arise. No allegation of misconduct was made against the petitioner by the management at any stage, not to speak of framing of charge; not even in the written statement. No alternative prayer was made in the written statement that in the event acceptance of resignation was held to be invalid, management should be allowed to lead evidence to show that continuance of the petitioner in service would not be justified. In such circumstances, Court is of the view that learned Labour Court was not justified in coming to the conclusion that the management had succeeded in establishing commission of misconduct by the petitioner warranting termination of service. The finding that punishment of termination from service was justified is wholly untenable as no such punishment was imposed. At this stage, Ms. Deori, learned counsel for respondent No. 1 has placed before the Court a copy of judgment and order dated 26.08.2014 passed by a Division Bench of this Court in Dharitri Barman v. Gauhati High Court in support of her contention that after acceptance of resignation it was not open to the workman to withdraw the resignation. 15. I am afraid the said decision would not be attracted to the facts and circumstances of the present case in as much as learned Labour Court has held on the basis of materials on record that resignation of the petitioner was not voluntary. When it is a case of obtaining resignation through force or coercion, acceptance of such resignation has no legal consequence as it would be no resignation at all in the eye of law. Therefore, question of acceptance of such resignation or withdrawal of such resignation would not arise. Thus the finding of the Labour Court that “termination from service” of the petitioner is not liable to be interfered with cannot be sustained and is liable to be set aside. 16. Therefore, question of acceptance of such resignation or withdrawal of such resignation would not arise. Thus the finding of the Labour Court that “termination from service” of the petitioner is not liable to be interfered with cannot be sustained and is liable to be set aside. 16. Having come to the conclusion that finding of the Labour Court justifying “termination from service” of petitioner is untenable, the next question which would require examination is the entitlement of the petitioner to back wages on reinstatement. 17. This is a case of extracting resignation of the petitioner under duress which has been established before the Labour Court. Subsequent view taken by the Labour Court that petitioner had committed misconduct justifying termination of service has been found to be untenable in law. Therefore, petitioner is entitled to reinstatement. 18. If the petitioner is to be reinstated, he would be entitled to back wages from the date his alleged resignation came into effect i.e. 01.06.2006. Principles governing payment of back wages on re-instatement has been succinctly laid down by the Apex Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya reported in (2013) 10 SCC 324 wherein it has been held that in a case of this nature denial of back wages would amount to indirectly punishing the employee who suffered for the illegal act of the employer. 19. Result of the above discussion is that the second part of the impugned award dated 31.12.2009 holding that punishment of termination from service of the petitioner did not merit interference is hereby set aside and quashed. Petitioner shall be re-instated in service with full back wages w.e.f. 01.06.2006. 20. Writ petition is allowed. No cost.