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2018 DIGILAW 189 (CAL)

Shalimar Paints Ltd. v. State of West Bengal

2018-01-30

RAJASEKHAR MANTHA

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JUDGMENT : RAJASEKHAR MANTHA, J. The writ petition has been filed challenging the award dated 29th July, 2004 passed by the 3rd Industrial Tribunal at Kolkata. The respondent No.3 workman, has during the pendency of the writ petition, superannuated from service. 2. The facts of the case are inter alia that a charge sheet dated 14th January, 1991 [1st Charge Sheet] was issued by the management against the 3rd Respondent, Prafulla Kumar Behara, a workman of the company. The charges inter alia were, holding a meeting with outsiders in the company premises without prior permission. The respondent No. 3 was suspended from service. The charge was for violation of Clauses 13(b)(viii), 13(b)(xxvi) and 13(b)(ix) of the Companies Standing Orders. Departmental proceedings were held in respect of the first Charge Sheet between 18th February, 1991 until 5th of August, 1992. 3. On the 12th of August, 1992 the respondent No. 3 is alleged to have surrounded and physically restrained some officers of the company. On the 16th of August, 1992 the workman was issued a second Charge Sheet for alleged misconduct, under Clause 13(b)(xviii)(xxi) and (xxvi) of the certified standing orders of the company. 4. On the 29th of September, 1992 the final order in respect of the first Charge Sheet was issued imposing a penalty of ‘four days of suspension without pay.’ 5. The punishment order dated 29th of September, 1992 in respect of the first Charge Sheet was given effect to on and from 29th September, 1992 to 2nd October, 1992 i.e. four days. 6. However, on the 3rd day of October, 1992 the workman was once again placed under suspension in contemplation of proceedings under the 2nd Charge Sheet. 7. The said suspension was challenged and an industrial disputes was sought to be raised by the Workman's Union vide letter dated 27th December, 1993. In respect of such request the Conciliation Officer concerned did not proceed further as according to him suspension of the respondent No. 3 workman on and from 3rd October, 1992, was in aid of the pending enquiry under the Second Charge Sheet. The request however remained and was kept pending before the Conciliation Officer. 8. The enquiry under the second Charge Sheet was continued until 29th February, 1996 when the Enquiry Officer submitted his report. The request however remained and was kept pending before the Conciliation Officer. 8. The enquiry under the second Charge Sheet was continued until 29th February, 1996 when the Enquiry Officer submitted his report. On the 2nd day of January, 1998 the Workmens' Union raised an Industrial Dispute regarding the prolonged suspension of the workman both pending the enquiry under the first Charge Sheet, the suspension of four days as a punishment in respect of the first Charge Sheet as also the order of suspension pending the enquiry in respect of the 2nd Charge Sheet. 9. After a lapse of three and half years from the date of submission of the enquiry report in respect of the 2nd Charge Sheet, the writ petitioner management company applied for permission to impose punishment before the Conciliation Officer and Assistant Labour Commissioner, under Section 33(1)(b) of the Industrial Disputes Act, 1947. 10. By an order dated 17th May, 2000 the said Conciliation Officer and Assistant Labour Commissioner rejected the application of the Company under Section 33(1)(b), as aforesaid in respect of the second Charge Sheet. 11. By an order dated 9th August, 2001 the Government of West Bengal referred an Industrial Dispute to the 3rd Industrial Tribunal and ordered that an award should be made on the issues referred therein within a period of three months. The issues referred are as follows:— Issues 1. Whether the suspension of Shri. Prafulla Kumar Behara, Ticket No. 569 from 29.09.92 to 02.10.92 is justified? 2. Whether continuation of prolonged suspension even after conclusion of domestic enquiry is justified? 3. What relief, if any, the workman is entitled to? 12. The said issues were taken up and an award was passed by the 3rd Industrial Tribunal, West Bengal on the 29th of June, 2004. The said award was published by the State Government under Section 17 of the Industrial Disputes Act, 1947 on the 29th of July, 2004. 13. The said award has been challenged in the instant writ application. The parties have exchanged affidavits. 14. It was argued by the Learned Counsel appearing for the writ petitioner that since the first point of reference dealt with suspension of the writ petitioner from 29.09.1992 to 2nd August, 1992, the period of suspension prior thereto was outside the scope of reference and hence the Tribunal acted in excess of jurisdiction in dealing with the said prior period. 15. 15. In respect of the above argument one needs to bear in mind that the period of four days referred to in issue No.1 was suspension by way of penalty and not in contemplation with the departmental enquiry. The Tribunal while deciding the validity penalty of four days came to the conclusion that the same is not sustainable in law. The Tribunal also found serious faults in respect of the conduct of the first enquiry. The lapses noticed by the Tribunal inter alia that the charges were vague; the workman was not afforded an opportunity to defend himself as he was not allowed inspection of some documents; and that a witness of the management, whose evidence was relied upon by the Enquiry Officer in his enquiry report was not allowed to be cross-examined by the workman. I find that the said Tribunal was justified in its findings to that effect. I am however, not inclined to accept the Tribunal's view that the examination of the Presenting Officer has prejudiced the workman. 16. Since a Tribunal with appellate powers has found after analyzing the evidence that the charges against the workman could not be proved, this Court sitting in writ jurisdiction would be very slow to upset such a finding. The said finding is neither perverse nor dehors the evidence on record. Learned Counsel appearing for the writ petitioner as also rightly not chosen to take this Court through the evidence on record. This Court cannot re-appreciate such evidence in the writ jurisdiction under Section 226 of the Constitution of India. I therefore hold that the finding of the learned 3rd Industrial Tribunal as regards the illegality of the penalty of suspension for four days cannot be interfere with and is thus sustained. 17. Curiously the final order dated 29th September, 1992 in respect of the first Charge Sheet is silent as regards the manner in which the period of suspension prior to 29th September, 1992, i.e. from 14th January 1991 to 29th September 1992, would be treated. The penalty and proceedings in respect of the 1st Charge Sheet having been struck down, the entire period of suspension, in aid of the first Charge Sheet is liable to be treated as on duty. 18. In respect of the second Charge Sheet permission under Section 33(1)(b) of the I.D Act, 1947 has been rejected on the 17th of May, 2000. 18. In respect of the second Charge Sheet permission under Section 33(1)(b) of the I.D Act, 1947 has been rejected on the 17th of May, 2000. The management has not challenged the said order dated 17th May, 2000. The proceedings initiated by the management under the said second Charge Sheet are thus nullified. This brings us to the second issue under the reference dated 9th August, 2001. 19. The Tribunal having struck down the punishment of four days suspension under the first Charge Sheet the period of punishment from the day of first suspension i.e. from 29th September 1992 till 2nd October, 1992 therefore must be treated as on duty. 20. In respect of the period of suspension in contemplation of proceeding under the second Charge Sheet i.e. from 3rd October, 1992 till 17th May, 2000 must also be treated on duty as the management's application under Section 33(1)(b), to impose punishment has been rejected. This leaves us with the period from 9th August, 2001, being the date of reference until 29th July 2004 (when the reference was answered) as also during the pendency of the instant writ application from 2004 till date. Since the workman has succeeded in the reference and same has been upheld by this Court, the said period from 9th August 2001 till superannuation must be treated as on duty. 21. I have serious doubts as regards the bona fides of the management in the suspension of the workman in contemplation of the two enquiries under two successive Charge Sheets. The four days of suspension, (from 29.10.1992 till 3rd October 1992) albeit a penalty, was a convenient yet inconsequently interlude for the management. 22. The writ petitioner/management has not been able to demonstrate any undue adjournment having been taken by the workman in course of the first and second enquiry. No evidence to that effect has either been lead before the Tribunal below. No documents or evidence have been produced before this Court to that effect by the management. On the contrary I find the timing of the suspension pending the second enquiry i.e. 4th of October, 1992, immediately after expiry of the punishment period of the first Charge Sheet i.e. the 3rd October, 1992 extremely suspicious. No documents or evidence have been produced before this Court to that effect by the management. On the contrary I find the timing of the suspension pending the second enquiry i.e. 4th of October, 1992, immediately after expiry of the punishment period of the first Charge Sheet i.e. the 3rd October, 1992 extremely suspicious. It is indeed convenient for the management to contend that the second suspension was in aid of the proceedings under the second Charge Sheet, such a contention being permissible in law. 23. However, the inordinate delay of four years for conduct of enquiry in respect of the second Charge Sheet as also the three and half years of delay in applying under Section 33(1)(b) for permission to impose penalty thereunder the betray the true intention of the management. The workman concerned was a Secretary of one of the Trade Unions of the writ petitioner's company. One cannot lose sight of the fact that the charges under the first Charge Sheet are flimsy and the penalty imposed was equally mild. The management also did not challenge the order dated 17th May, 2000 rejecting the application under Section 33(1)(b). The management's real motive can be culled out from the above pattern/sequence of events. The workman thus remained under suspension from 1992 all the way to the year 2000 and until the year 2004. The workman was thus effectively kept away being physically present in the factory by the management, illegally and motivatedly. In other words, there was a clear and concerted effort on the part of the management to keep the workman away from the factory premises/work place. 24. The finding of the Tribunal on the second point of reference that the prolonged suspension of the workman from January 1991 till May, 2000 was totally unjustified is, in my view, definitely sustainable. 25. This now brings us to the question as to the quantum of arrears payable to the workman concerned as he has superannuated from service. 26. Since the order of punishment under the first Charge Sheet and the proceedings under the 2nd Charge Sheet have been quashed by the Tribunal, and this Court finding no reason to upset the finding of the Tribunal in that regard, the respondent No. 3 workman will stand exonerated of all charges. 26. Since the order of punishment under the first Charge Sheet and the proceedings under the 2nd Charge Sheet have been quashed by the Tribunal, and this Court finding no reason to upset the finding of the Tribunal in that regard, the respondent No. 3 workman will stand exonerated of all charges. The entire period of suspension either in aid of pending enquiry and four days as a penalty shall and must be treated as on duty. 27. Mr. Majumder argued that the respondent workman did not make an application under Section 33(2)(c) for claiming full arrears of pay or under Section 17(b) of the said Act seeking enforcement of the orders of the Tribunal. He argued that, hence this Court should not award full back wages to the workman. The above contention cannot be however be brushed aside. While it is true that real intention of the Company was to keep the workman away from actual employment, there was a corresponding obligation on the part of the workman to seek reinstatement and full arrears of salary under the provisions of the said Act of 1947. The acts and omissions of the employer however assume a higher degree of impropriety. 28. In those circumstances I would in the facts of the matter allow the workman 70% of all wages, salary and emoluments from the date of first suspension under the first Charge Sheet, until 17th May 2000 being the date of rejection of the employers application under Section 33(1)(d) of the said Act of 1947. 29. From the 18th of May 2000 until the date of superannuation the respondent No. 3 workman shall be entitled to 80% of the actual wages, salaries and emoluments including increments, payable by the Company to him. 30. The above sums shall be calculated on the basis that the workman was on regular and full duty/employment. 31. For the period from the date of superannuation until date, the respondent workman shall be entitled to interest on the sum of dues calculated as directed hereinabove, at the rate of 8% p.a. simple interest. Payment of the sums directed above shall be made within a period of 2 months from date. 32. The workman shall also be entitled to interest at the rate of 12.5% p.a. from date till the actual date of payment. 33. Payment of the sums directed above shall be made within a period of 2 months from date. 32. The workman shall also be entitled to interest at the rate of 12.5% p.a. from date till the actual date of payment. 33. The contentions of the writ petitioner and the prayers made writ petition are rejected. W.P.19525 (W) of 2004 is hereby disposed of with the aforesaid directions. In view of the interest ordered hereinabove, there shall be no order as to costs. 34. Urgent xerox certified copy of this judgment, if applied for, be supplied to the parties on urgent basis.