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Madhya Pradesh High Court · body

2017 DIGILAW 214 (MP)

Chief General Manager v. Rajnoo

2017-02-09

SANJAY YADAV

body2017
ORDER : Sanjay Yadav, J. 1. With consent of learned counsel for the parties, the matter is finally heard. 2. This petition under Article 227 of the Constitution of India is directed against the Award dated 4.5.2010 passed by the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur (hereinafter referred to as 'CGIT'), whereby the termination of respondent-workman has been set aside with a direction for reinstatement with back wages w.e.f. 7.7.1996. 3. The background facts briefly are that, respondent workman employed as General Majdoor with the petitioner was visited with a charge sheet on 6.6.1995 with the charge of remaining absent without leave and permission. The charges levelled against the workman was that he remained absent for 22 days in October, 1994, 14 days in November, 1994 and 16 days in December, 1994. The workman was, however, was punished for remaining unauthorised absent from 1992 to 1996 (46 days in 1992, 68 days in 1993, 70 days in 1994, 80 days in 1995 and 68 days in 1996). Enquiry into the charges culminated in an order of termination on 7.7.1996. On respondent raising an industrial dispute, the matter was referred to the CGIT for adjudication of following dispute : "Whether the action of the Manager, Nandan Mine No.1 of WCL, Kanhan Area, PO Nandan, Distt. Chhindwara (MP) in terminating the services of Shri Rajanoo Pasvan S/o Shri Dharafee, General Manager, T. No.2547 of Nandan Mine No.1 of WCL, Kanhan Area w.e.f. 7.7.1996 is legal and justified ? If what, what relief the workman is entitled to ?" 4. On the basis of claim and the counter thereof, the CGIT framed following issues : (1) Whether departmental enquiry conducted against the workman is proper and legal ? (2) Whether the misconduct of habitual absentee is proved against the workman ? (3) Whether the order of termination from service of the workman is justified ? If not, what relief the workman is entitled to ? 5. The issue No.1 was decided in favour of the Management by upholding the valadity of the disciplinary proceedings. 6. As to issue No.2, the Tribunal found fault with the findings in the domestic enquiry as perverse. The CGIT on the basis of record found : 10. The departmental enquiry proceeding dated 10-6-96 (Paper No.8/68) shows that only three documents were filed and relied by the management before the E.O. They are as follows: 1. 6. As to issue No.2, the Tribunal found fault with the findings in the domestic enquiry as perverse. The CGIT on the basis of record found : 10. The departmental enquiry proceeding dated 10-6-96 (Paper No.8/68) shows that only three documents were filed and relied by the management before the E.O. They are as follows: 1. Charge-sheet No. 1916 dated 6-6-95 which was marked as M. Exhibit No.1. 2. Reply of the charges of the workman Shri Rajnoo Paswan dated 14-6-95 which was marked as M. Exhibit-2. 3. Attendance particulars of Shri Rajnoo Paswan prepared by wage clerk on 20-6-95 which was marked as M.Exhibit-3. Except these three documents, the Management had not relied any other documents to establish the charges against the workman. 11. M.Exhibit-1 is charge-sheet No.1916 dated 6-6-95 whereby the workman Shri Rajnoo Pasvan was charges for his absence in Oct. 1994-22 days, in Nov. 1994-14 days, and in Dec. 1994-16 days without any sanction of leave in violence of clause 26(24) of the Standing Order. There was no charge of his past conduct of absenteeism. The enquiry proceeding clearly shows that the workman had denied the charges. Simply furnishing of charges to the delinquent is not said to be proved. 12. M.Exhibit-2 is the reply of the charges by the workman, Shri Rajnoo Paswan. The reply shows that the workman has shown reason of his absence in 1994 that he was ill and had furnished medical certificate in the office for his joining. The clause 26 (24) of the Standing Order as has been stated in the charge sheet shows that if any employee absented without any cogent reason, the same would be treated as misconduct. The reply of the workman shows that he was ill and he had furnished medical certificate at the time of joining. This fact is not denied in evidence. This document is relied by the Management in the enquiry proceeding. Paper 8/68 of the departmental proceeding corroborates this fact that cogent reason was shown for his absence. 13. M.Exhibit-3 is the attendance particulars of Shri Rajnoo Paswan which appears to have been prepared by wage clerk on 29-06-95. This attendance particulars are for the year 1992 to 1995. This is not a primary evidence. This particulars appear to have been prepared either from wage register or attendance register. 13. M.Exhibit-3 is the attendance particulars of Shri Rajnoo Paswan which appears to have been prepared by wage clerk on 29-06-95. This attendance particulars are for the year 1992 to 1995. This is not a primary evidence. This particulars appear to have been prepared either from wage register or attendance register. The management had failed to produce those registers before the Enquiry Officer which were admittedly primary evidence. No reason was also assigned as to why these registers were not produced. Moreover the wage clerk, who was maker of the attendance particulars, was also not examined before the E.O. to test the veracity of the said document. The attendance particulars of the year 1992, 1993 and 1995 were also not in the charges. Admittedly the attendance particulars was prepared after serving of the charge sheet to the workman. This was admittedly not part of the charge-sheet. The learned counsel for the workman has submitted that this attendance particular has no legal value. Thus it is clear that the documents filed by the management before the E.O. do not prove misconduct by habitual absenteeism as it is not based on legal evidence. 7. The CGIT further observed from the findings by the Enquiry Officer in his respect of accepting the fact that "He remained absent only on the days he was sick and after he got cured from sickness, he attended his duties after informing the management about his sickness, the management also allowed him on duty on the basis of his information that he was sick". These findings led the CGIT hold : "Thus, it is clear that the finding of the E.O. is perverse for lack of evidence rather it is established that whenever the workman remained absent he furnished medical certificate showing his reasonable ground of his absence. It is obvious that one cannot inform of his absence prior to his illness that he is going to become ill." 8. The findings arrived at by the CGIT is in consonance with the material evidence on record of domestic enquiry. 9. It is obvious that one cannot inform of his absence prior to his illness that he is going to become ill." 8. The findings arrived at by the CGIT is in consonance with the material evidence on record of domestic enquiry. 9. Trite it is that under Section 11A of the Industrial Disputes Act, 1947, it is within the jurisdiction of the CGIT not only to alter the quantum of punishment imposed upon a workman, but also to enter into the merit of the matter so far as determination of the proof of misconduct or otherwise on the part of the workman is concerned. [Please see, Usha Breco Majdoor Singh v. Management M/s. Usha Breco Ltd. (2008) 5 SCC 554 : 2008 (118) FLR 400]. 10. In The Workmen of M/s. Firestone Tyre and Rubber Co. of India P. Ltd v. the Management AIR 1973 SC 1227 , it has been held : - 37. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, section 11A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are not put on a par by Section 11A." 11. As regard to the findings that the workman was held guilty of unauthorised absent of the period which was not even the part of charges. 12. In Laxmi Devi Sugar Mill Ltd. v. Nand Kishore Singh AIR 1957 SC 7 , it has been held : 18. The charge-sheet which was furnished by the appellant to the respondent formed the basis of the enquiry which was held by the General Manager and the appellant could not be allowed to justify its action on any other grounds than those contained in the charge sheet. 13. Similarly, in Management of Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan (2005) 3 SCC 193 , it is held :- 12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these type of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution of India can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. 14. The findings arrived at by the CGIT as to issue No.2 when tested on the anvil of the facts on record and the law laid down by the Supreme Court, there remains no scope for interference in a petition under Article 227 of the Constitution of India. 14. The findings arrived at by the CGIT as to issue No.2 when tested on the anvil of the facts on record and the law laid down by the Supreme Court, there remains no scope for interference in a petition under Article 227 of the Constitution of India. In the context as to the scope of interference in a writ petition as to the findings by the Tribunal, reference can be had of the decision in Syed Yakoob v. K.S. Radhakrishnan and others AIR 1964 SC 477 , it has been held : "7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the. Tribunal had. erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the. Tribunal had. erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was' insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque [1955] 1 S.C.R. 1104., Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam 1958] S.C.R. 1240, and Kaushalya Devi v. Bachittar Singh A.I.R. 1960 S.C. 1168. It is, of course, not easy to define or adequately describe what an error of law apparent on the face." 15. Dwelling on the issue No.3, the CGIT having found that the Management miserably failed in establishing that the workman was an habitual absentee, directed for reinstatement with full back wages. The petitioner takes exception to the same. 16. In Hindustan Tin Works v. Employees (1979) 2 SCC 80 , it has been held - "9. ... The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. ... The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer." 17. In Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324 , it is held : "38. The propositions which can be culled out from the aforementioned judgments are: 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award fullback wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6. In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. 38.6. In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra). 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra)that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to here in above and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman." 18. The conclusion arrived at by the CGIT as to the entitlement of the workman of full back wages in the present case cannot be faulted with. 19. One the grounds raised by the petitioner of\ delay of five years in raising the dispute which, as per the petitioner, disentitles the workman from any relief is taken note of and rejected at the outset. 20. In Kuldeep Singh v. G.M. Instrument Design Development and Facilities Centre AIR 2011 SC 455 , it is held :- 21. In view of the above, law can be summarised that there is no prescribed time limit for the appropriate Government to exercise its powers under Section 10 of the Act. 20. In Kuldeep Singh v. G.M. Instrument Design Development and Facilities Centre AIR 2011 SC 455 , it is held :- 21. In view of the above, law can be summarised that there is no prescribed time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate government "at any time" refer the dispute to a Board or Court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for laches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate Court or Forum for adjudication. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. However, in view of the explanation offered by the workman, in the case on hand, as stated and discussed by us in the earlier paragraphs, we do not think that the delay in the case on hand has been so culpable as to disentitle him any relief. We are also satisfied that in view of the details furnished and the explanation offered, the workman cannot be blamed for the delay and he was all along hoping that one day his grievance would be considered by the Management or by the State Government. 21. In view whereof, the industrial dispute was existing on the day when the dispute was raised. 22. Another aspect which remains to be answered arises from I.A. No.5086/2014 filed by the petitioner stating therein that in furtherance to the order-dated 12.10.2012; whereby the petitioner was directed to pay provisional wages to the respondent as prevalent at the time of stay of operation of Award (which was on 29.7.2011), the workman was paid an amount of Rs.5,68,456/- vide cheque dated 20.4.2013. It is contended that the order-dated 12.10.2012 was recalled on 1.3.2013 to the extent that the workman shall be entitled for wages last drawn by him vide Section 17B of the Industrial Disputes Act, 1947. It is urged on behalf of petitioner that the respondent-workman is not entitled for more than what is provided under the statute; it is accordingly, urged that the amount paid in excess to the amount under Section 17B be permitted to be recovered. 23. Though the workman has opposed the contention made vide I.A. No.5086/2014; however, taking into consideration that Section 17B of 1947 Act entitles the workman only the wages last drawn by him and the petitioners were made to pay current wages by an order-dated 12.10.2012 which was later on recalled, the petitioners are entitled to recover the excess amount in five monthly instalment. 24. The petition is disposed of finally in above terms. No costs. 25. All pending I.As stand disposed of.