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2017 DIGILAW 181 (GAU)

Protin Patni Dey v. Oil India Limited

2017-02-09

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. N Deka, learned counsel for the petitioner and Mr. SN Sarma, learned senior counsel appearing on behalf of all the respondents. 2. The petitioner's case in brief is that he was appointed as a Graduate Teacher for a period of 6 months with effect from 13.07.2011 in the Oil India H.S School, Duliajan. 3. The petitioner was thereafter issued a show-cause notice dated 23.09.2011 on the charge of having sexually harassed a girl student of class-IX. The petitioner was suspended on 23.09.2011. The petitioner filed a reply dated 24.09.2011 to the show-cause notice and subsequently notice of enquiry dated 26.09.2011 was issued by the respondents, wherein, it was stated that a formal enquiry was to take place. Thereafter, the respondents issued an order dated 19.10.2011, by which the show-cause notice dated 23.09.2011 was withdrawn and the enquiry proceedings to be initiated was also cancelled. 4. Subsequent to the order dated 19.10.2011 withdrawing the earlier show-cause notice, the petitioner was served with a second show-cause notice dated 19.10.2011, whereupon it was reiterated that the petitioner had sexually harassed a minor girl student of class-EX. The petitioner submitted his reply to the second show-cause notice vide representation dated 24.10.2011. Thereafter, a notice of enquiry dated 05.11.2011 was issued to the petitioner and an enquiry proceeding was initiated against the petitioner. The enquiry report was made on 25.04.2012 and in the enquiry report dated 25.04.2012, the finding of Enquiry Officer was to the effect that the charges could not be established against the petitioner. 5. The petitioner's counsel submits that the Principal of the School, who was acting as the disciplinary authority, without forwarding the aforesaid enquiry report to the petitioner sought for a written statement of defence from the petitioner. The petitioner thereafter, sought for a copy of the enquiry report as the same had not been supplied to him. The petitioner was furnished with the copy of the enquiry report and the petitioner was also asked to submit a representation against the said enquiry report vide letter dated 14.07.2012, issued by the Principal of the School. The petitioner submitted his representation in respect of the enquiry report dated 25.04.2012 and requested the Principal to accept the findings of the enquiry report and accordingly, prayed for reinstatement in service. 6. The petitioner submitted his representation in respect of the enquiry report dated 25.04.2012 and requested the Principal to accept the findings of the enquiry report and accordingly, prayed for reinstatement in service. 6. The Principal of the School, thereafter passed an order dated 16.08.2012 wherein the petitioner was imposed with the punishment of dismissal. In the impugned order dated 16.08.2012, the Principal of the School had stated that she had disagreed with the findings of the enquiry report and had accordingly, imposed a punishment of dismissal against the petitioner. 7. The petitioner's counsel submits that no reasons have been given by the Principal of the School for disagreeing with the enquiry report in the said order dated 16.08.2012. However, the annexure to the impugned order dated 16.08.2012 contained reasons given by the principal for disagreeing with the enquiry report. The petitioner's counsel, submits that the reasons given by the Principal of the School, which was annexed to the impugned order dated 16.08.2012, cannot be taken into account by this Court, in view of the fact that the annexure was an unsigned document. 8. The petitioner's counsel submits that on being dismissed from service, the petitioner had submitted a complaint to the Regional Labour Commissioner, Central at Dibrugarh. Conciliation was attempted between the petitioner and the Management, which ended in failure as per the Minutes of the proceedings dated 19.02.2015 issued by the RLC-cum-Conciliation Officer, Dibrugarh. 9. The petitioner's counsel submits that the petitioner thereafter, approached this Court by way of present writ petition as the petitioner is not a workman as defined in the Industrial Disputes Act, 1947. The petitioner's counsel submits that the disciplinary authority should have given the petitioner an opportunity to represent before it, with regard to the reasons made by the disciplinary authority for disagreeing with the enquiry report. In this regard, the petitioner relies upon the judgment of the Apex Court in Punjab National Bank Vs. Kunj Behari Misra reported in (1998) 7 SCC 84 . The petitioner's counsel submits that the petitioner is not a workman as defined in Section 2(s) of the Industrial Disputes Act, 1947 and this has also been held by the Apex Court in the case of Miss. A Sundarambal Vs. Government of Goa, Daman and Diu reported in (1988) 4 SCC 42 . The petitioner's counsel submits that the petitioner is not a workman as defined in Section 2(s) of the Industrial Disputes Act, 1947 and this has also been held by the Apex Court in the case of Miss. A Sundarambal Vs. Government of Goa, Daman and Diu reported in (1988) 4 SCC 42 . The above case was relied upon by the Apex Court in another case i.e. Sonepat Co-op Sugar Mills Ltd. Vs. Ajit Singh, reported in (2005) 3 SCC 232 . 10. Mr. SN Sarma, learned counsel for the respondents, on the other hand submits that the petitioner was appointed as a temporary teacher for 6 months vide order dated 11.07.2011 and he was on probation. As per clause-6 of the appointment order, the petitioner's service was to be governed by the modified Standing Order of the Oil India Limited. 11. The senior counsel for the respondents further submits that the petitioner's service, being governed by the modified Standing Orders, the petitioner is to be deemed to be a workman, as per the Industrial Disputes Act, 1947. He also submits that as per the modified Standing Orders, a probationer has been classified as a workman. Accordingly, the petitioner being appointed on probationary basis as a teacher, the petitioner has to be treated to be workman. 12. The counsel for the respondent also submits that as the petitioner has already availed the alternative remedy, by filing a complaint before the Regional Labour Commissioner, Central, the petitioner could not now be allowed to change his course of direction by approaching this Court under Article 226. 13. The respondents counsel also submits that in view of the section 2A of the Industrial Disputes Act, 1947, the petitioner can directly approach the Labour Court/Tribunal after the conciliation effort between the petitioner and the Management had failed, as recorded in the Minutes of the proceedings dated 19.02.2015. The respondents counsel submits that as per the Division Bench judgment of this Court in Prafulla Chandra Sarma & Ors Vs. M/s. Oil India Ltd., Duliajan & Ors reported in AIR 1971 Assam and Nagaland, the Court held that if mere was any violation of standing orders and violation of principles of natural justice, the petitioners are not entitled to resort to extra ordinary remedy provided under article 226 of the Constitution of India, without resorting to the reliefs provided under the Industrial Disputes Act, 1946. The senior counsel also relies upon the judgment of the Apex Court in Chairman Coal India Ltd. & Anr. Vs. Madan Prasad Sinha & Ors reported in (2000) 10 SCC 597 and Scooters India Vs. Vijai E.V Eldred reported in (1998) 6 SCC 549 which are to the effect that a High Court should not entertain a writ petition for adjudication of an Industrial Dispute involving termination, for which remedy under the industrial law was available to a workman. 14. I have heard the learned counsel for the parties. 15. The issue in hand is whether the petitioner could be said to be a workman under the Industrial Disputes Act, 1947. Section 2(s) of the Industrial Disputes Act, 1947 is quoted below: "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person, who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person i. Who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), or ii. Who is employed in the police service or as an officer or other employee of a prison; or iii. Who is employed mainly in a managerial or administrative capacity; or iv. Who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions of a managerial nature.] 16. The Apex Court in the case of Miss A. Sundarambal (Supra) has held that in order to be workman, a person should have to satisfy the following conditions: i. He should be a person employed in an industry for hire or reward; ii. He should be engaged in skilled or unskilled manual, supervisory, technical or clerical work; and iii. The Apex Court in the case of Miss A. Sundarambal (Supra) has held that in order to be workman, a person should have to satisfy the following conditions: i. He should be a person employed in an industry for hire or reward; ii. He should be engaged in skilled or unskilled manual, supervisory, technical or clerical work; and iii. He should not be a person falling under any of the four clauses, i.e. (i) to (iv) mentioned in the definition of 'workman' in section 2(s) of the Act. 17. The Apex Court, thereafter, had considered the various provisions of the Industrial Disputes Act and came to a finding that a teacher was not a workman though the School was an industry. 18. In view of the law laid down by the Apex Court, this Court is of the view that the petitioner cannot be said to be a workman, as he is a teacher. Accordingly, this Court is of the opinion that the petitioner has not committed any illegality in coming to this Court by way of the present writ petition. The complaint having been initially submitted by the petitioner to the Regional Labour Commissioner will not bar the petitioner from approaching this court under article 226 of the Constitution of India as he is a not workman. 19. The enquiry report dated 25.04.2012 had exonerated the petitioner from all charges. In the case of Punjab National Bank (supra), the Apex Court has held that whenever the disciplinary authority disagrees with the enquiry officer on any article of charge, before it records its own finding on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer, an opportunity to represent before the disciplinary authority, before final findings on the charges are recorded and punishment imposed. 20. In the present case, the impugned order dated 16.08.2012 clearly shows that no opportunity was given to the petitioner, with regard to the reasons allegedly made by the disciplinary authority, for disagreeing with the findings of the enquiry report. 21. In view of the reasons stated above, the impugned order dated 16.08.2012 is not sustainable in law and accordingly, the same is set-aside. 21. In view of the reasons stated above, the impugned order dated 16.08.2012 is not sustainable in law and accordingly, the same is set-aside. However, liberty is given to the respondent No. 4 to continue with the departmental proceedings from the stage of furnishing to the petitioner, the reasons made by the Disciplinary authority for disagreeing with the Enquiry report, and giving the petitioner an opportunity to make a representation against those reasons. The Disciplinary authority shall thereafter pass consequential orders. The above exercise should be completed within a period 'of 3 months from the date of receipt of a certified copy of this order. 22. The petitioner shall be immediately reinstated into service and the petitioner's suspension will still be deemed to be in operation. Accordingly, the respondents will pay to the petitioner, subsistence allowance @ 50% of the salary with effect from 16.08.2012 till disposal of the Enquiry proceedings. 23. The petition is accordingly disposed of.