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2017 DIGILAW 751 (GAU)

SUKH SAGAR NAYAK v. LABOUR COURT AT DIBRUGARH

2017-06-08

HRISHIKESH ROY

body2017
JUDGEMENT AND ORDER (ORAL) : Heard Ms. P. Bhattacharya, the learned counsel for the petitioner (workman). The Management of the Borchapori T.E. (respondent No.2) is represented by Mr. G.N. Sahewalla, the learned senior counsel. 2. The petitioner was a workman in the Borchapori TE in Sivasagar District. For the misconduct committed by him, after due inquiry, the workman was dismissed from service on 4.7.1996. The resultant industrial dispute, was referred under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the ID Act’) and the Labour Court was required to answer the following issues:- “(1) Whether the management of Borsapari Tea Estate, P.O. Numaligarh, Dist. - Golaghat is justified in dismissing the services of Sri Sukh Sagar Nayak, workman w.e.f. 4.7.1996? (2) If not, is the said workman entitled to reinstatement with full back wages or any other relief in lieu thereof?” 3. The learned Labour Court, Dibrugarh, after evaluating the evidence adduced by the parties opined that the inquiry was conducted with due opportunities to the workman, who cross-examined the Management witnesses. The Court noted that the workman did not suffer any prejudice for not having a co-worker in the domestic inquiry and accordingly concluded that the workman was rightly found guilty of dishonesty and committing fraud in respect of the T.E. property and causing loss to the company. As the misconduct was found to be grave and serious, the dismissal of the workman was found to be justified, under the impugned award dated 31.12.2010 (page-21). 4.1. Assailing the legality of the award in favour of the Management, Ms. P. Bhattacharya, the learned counsel submits that as the workman was involved with trade union activities, he was victimized by the Management for raising the concern of the workmen in the T.E. 4.2. The counsel refers to the written statement of the delinquent to project that the cutting of the trees and loading the timber on the truck to take out the loaded truck from the T.E., was informed by the workman to the Management and accordingly it is argued by Ms. Bhattacharya that evidence is lacking on the involvement of the workman, with the charge of dishonest conduct. 4.3. The learned counsel makes an alternate submission on harsh punishment of dismissal by describing the misconduct as one capable of being exonerated or being punished with lesser penalty. 5.1. On the other hand, Mr. Bhattacharya that evidence is lacking on the involvement of the workman, with the charge of dishonest conduct. 4.3. The learned counsel makes an alternate submission on harsh punishment of dismissal by describing the misconduct as one capable of being exonerated or being punished with lesser penalty. 5.1. On the other hand, Mr. G.N. Sahewalla, the learned senior counsel submits that when the charges were established through a due process and a fair opportunity was provided to the workman to cross-examine the Management witnesses and to bring forth his own defence evidence, the finding given by the learned Labour Court, in Management’s favour, should not be disturbed by the Writ Court. 5.2. The Management contends that when the charges were proved in the inquiry on the basis of cogent evidence, the conclusion drawn by the Inquiry Officer, cannot be a subject matter of scrutiny by the Writ Court, particularly when, the competent Labour Court has answered the Reference, in favour of the Management. 5.3. Referring to the evidence adduced by the Management, in the domestic enquiry, the learned senior counsel submits that notwithstanding the plea taken in the written statement, the workman even in his own testimony, failed to state that he informed the Management, about the cutting of trees and theft of the timber and therefore it is argued that an improbable plea of innocence is raised in the workman’s written statement and in the argument of his lawyers. 6. The records from the Labour Court in the Reference Case No.11/2007, is available and the petitioner’s lawyer has read out the vernacular testimony of the workman. In his defence evidence, the workman raise the plea of victimization but he does not substantiate the plea. More importantly, the testimony of the workman Sukh Sagar Nayak (WW.1) nowhere mentions that it was he who informed the Management about the attempted theft of the timber and cutting of the T.E. trees. 7. On the other hand, the evidence of the Management’s witness Debraj Nahak (MW—2), is very significant. In his testimony, this witness speaks about his own engagement as a Mohrar in the timber business of the delinquent workman and how he was receiving weekly wages for cutting and transporting timber, in the side business of the T.E. workman. 7. On the other hand, the evidence of the Management’s witness Debraj Nahak (MW—2), is very significant. In his testimony, this witness speaks about his own engagement as a Mohrar in the timber business of the delinquent workman and how he was receiving weekly wages for cutting and transporting timber, in the side business of the T.E. workman. The witness spoke of the specific instruction of the workman to cut down two T.E. trees and also the hiring of the truck by the delinquent himself to transport the cut timbers out of the T.E. The MW—2 was subjected to cross-examination by the workman but his evidence could not be shaken. 8. Therefore, it is apparent that the finding was recorded in the domestic enquiry, on the basis of cogent evidence and it is not a case of perverse finding. Moreover there is no evidence to support the plea of victimization, raised by the workman. Therefore the submission made by the workman’s counsel on this aspect are not acceptable to the Court. 9. The testimony of the witnesses in the domestic enquiry clearly establishes the active participation of the workman and his cross-examination of the Management’s witnesses. Therefore I find no infirmity in the conclusion, arrived at by the learned Labour Court, about the fairness of the proceeding and prejudice not being caused to the workman, by any suggested infringement. 10. The next issue to be considered is whether the punishment is disproportionate and whether a re-look at the penalty is warranted in the present case. 11. The charge against the workman was that on 15.12.1995, one Debraj Nahak, the son of another accused Madan Nahak was apprehended while he was trying to steal timber, belonging to the T.E. When the offender was apprehended at the spot, he stated that he was instructed by the delinquent to cut the T.E. trees and to load them on the truck, arranged by the delinquent. Thus it was a case of theft of T.E. property by felling of two trees and arranging for transportation of the cut timbers. Such conduct of an employee would certainly result in loss of faith of the Management. The workman was doing timber business on the side and had engaged others on salary basis, to cut trees and transport timbers for his own business. Such conduct of an employee would certainly result in loss of faith of the Management. The workman was doing timber business on the side and had engaged others on salary basis, to cut trees and transport timbers for his own business. Hence he was prompted by greed and cared little of his own responsibility as an employee of the company and had ordered for cutting of the T.E. trees to cause loss for the employer. 12. It is difficult for any Management to continue to have faith on such errant employee, who takes salary from the Management in one hand and arrange for theft of Management’s property with the other hand. Therefore on consideration of all relevant factors, any lesser punishment for the serious misconduct, in my perception, would not be justified. The penalty imposed was as deserved for the errant employee. 13. Following the above discussion, this case is found devoid of merit and the same is accordingly is dismissed. No cost. 14. The Registry should return the LCR of the Labour Court, Dibrugarh, along with a copy of this order.