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Jharkhand High Court · body

2018 DIGILAW 2208 (JHR)

Nagarmal Modi Seva Sadan v. Usha Devi

2018-10-04

RAJESH SHANKAR

body2018
ORDER : 1. The present writ petition has been filed for quashing the order dated 26.09.2013 passed by the Presiding Officer, Industrial Tribunal, Ranchi in Misc. Case No. 01 of 2012 whereby the petitioner’s application filed under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as “ the Act, 1947”) seeking approval of the respondent’s dismissal from service in view of serious misconduct has been rejected. 2. The factual background of the case as stated in the writ petition is that the respondent was an employee working as Ward Attendant in the petitioner-hospital. She was served with a charge-sheet dated 05.06.2012 (corrigendum dated 25.09.2012) alleging misconduct with the patients and also administering wrong medicines to them. The respondent submitted reply to the charge- sheet on 09.06.2012 denying all the charges levelled against her. Thereafter, a domestic enquiry was conducted by the enquiry officer namely Mrs. Banani Verma, Advocate, Jharkhand High Court and the enquiry report was submitted on 04.11.2012 holding the respondent guilty to the charges levelled against her. Since the gravity of charges proved against the respondent necessitated appropriate punishment by way of dismissal from service, it was thought appropriate to comply the procedure laid down in Section 33(2)(b) of the Act, 1947 as during that time, a Reference Case No. 04 of 2011 under Section 10 of the Act, 1947 was pending before the same Tribunal. Accordingly, an application was filed on 05.12.2012 which was registered as Misc. Case no. 01 of 2012. The petitioner carried out the next pre-requisite of remitting one month’s wages which was done on 08.12.2012 and on the same day, the action of dismissing the respondent was taken. The learned Tribunal vide order dated 26.09.2013 declined to give approval to the order of said dismissal. Hence, the present writ petition 3. Learned counsel for the petitioner submits that while dealing with the application under Section 33(2)(b) of the Act, 1947, the requirements as laid down in the said provision are to be examined by the Labour Court/Industrial Tribunal and is not supposed to enter into an excessively technical fault finding exercise over the enquiry proceedings. It is further submitted that the respondent had persistently refused to cross-examine the last witness and as such the learned Tribunal has wrongly given the finding that non-cross-examination of the last witness had vitiated the enquiry. It is further submitted that the respondent had persistently refused to cross-examine the last witness and as such the learned Tribunal has wrongly given the finding that non-cross-examination of the last witness had vitiated the enquiry. The learned Tribunal has also committed an error in holding that the management did not bring on record any document to prove and confirm that the amount remitted to the respondent workman included the amount of one month’s wages besides the payment related to the unpaid wages. It is also submitted that the cross-examination part of the deposition made by the respondent-workman recorded before the Tribunal, would clearly show that the amount of the said cheque in lieu of one month wages was said to be 75 paise less than her actual one month salary. It is also submitted that the jurisdiction of Industrial Tribunal under Section 33 (2)(b) of the Act, 1947 is limited and the same cannot be equated to that of Section 10 of the said Act, 1947. In support of the said argument, learned counsel for the petitioner puts reliance on a judgment rendered by the Hon’ble Apex Court in the case of Cholan Roadways Ltd. Vs. G. Thirugnanasambandam reported in (2005) 3 SCC 241 . It is further submitted that the Hon’ble Supreme Court, in the case of Filmistan (P) Ltd. Vs. Balkrishna Bhiwa and Anr. reported in (1972) 4 SCC 200 , has clearly held that performing all three acts simultaneously i.e. payment of one additional month’s salary, approval of Tribunal and dismissal, do not mean literally simultaneously, because a literal simultaneous discharge of the said three obligations is an impossibility by itself and if all these three ingredients are observed within few days, it satisfies the criteria of simultaneous transaction as envisaged under section 33(2)(b) of the Act, 1947. Learned counsel for the petitioner further puts reliance on a judgment rendered by the Hon’ble Apex Court in the case of State Bank of Bikaner Vs. Balai Chander Sen reported in AIR 1964 SC 732 and submits that even if an application under Section 33(2)(b) of the Act, 1947 is made before the concerned Tribunal prior to the action actually taken by the management would not run contrary to the spirit of Section 33(2)(b) of the Act, 1947 as it would, in fact, be more favourable to the employee. The only thing, which is to be seen by the learned Tribunal, is as to whether the action of the management in dismissing/discharging the employee, the payment of wages and making the application for approval are properly connected to each other to make those the parts of the same transaction. 4. The respondent, who earlier appeared in person, is not present today despite several intimations to her to appear in this case. Nonetheless, I have gone through the counter affidavit filed by her. In the counter affidavit, it has been stated that MW2-Dr. Sudip Choudhary, who happened to be the Chief Administrator of the petitioner, has deposed in para 22 of his cross-examination that whatever he has stated is for the pride of the Hospital and for its benefit, which goes to show that whatever has been deposed by the said witness is for the benefit of the petitioner and not the truth. It has further been stated that the respondent has not been paid the wages of one month in accordance with the Payment of Wages Act and other rules framed thereunder. In spite of several requests of the respondent, various documents were not provided to her and as such she was not able to sufficiently reply the charge-sheet served to her. The enquiry officer acted under the influence of the petitioner which would be evident from the manner in which the enquiry was conducted. The learned lower court has thus rightly rejected the application of the petitioner after properly going through facts and the applicable laws. 5. Heard the learned counsel for the petitioner and perused the materials available on record. The respondent was working as a Ward Attendant in the petitioner-hospital and she was charge-sheeted for misbehaving with the patients and also for administering wrong medicine. A departmental proceeding was initiated against the respondent and in the inquiry conducted by Mrs. Banani Verma, Advocate, Jharkhand High Court, the respondent was found guilty of the charges levelled against her. The respondent was working as a Ward Attendant in the petitioner-hospital and she was charge-sheeted for misbehaving with the patients and also for administering wrong medicine. A departmental proceeding was initiated against the respondent and in the inquiry conducted by Mrs. Banani Verma, Advocate, Jharkhand High Court, the respondent was found guilty of the charges levelled against her. Since, Reference Case No. 04 of 2011 filed under section 10 of the Industrial Disputes Act was pending before the Industrial Tribunal, the petitioner preferred an application dated 05.12.2012 before the Tribunal to comply the requirement of the provisions of section 33(2)(b) of the Act, 1947 and the order dismissing the respondent was passed on 08.12.2012 as well as the one month wages was also paid on the same date i.e 08.12.2012 through a cheque dated 04.12.2012. 6. The learned Tribunal framed four issues for adjudication which were as under:- (i) whether an enquiry was conducted against the opposite party in accordance with the principles of natural justice? (ii) whether such enquiry was conducted in all fairness abiding by the principles of natural justice? (iii) Whether the Management has paid one month’s wages to the opposite party? (iv) Whether the application seeking approval of the act of dismissal has been filed by the Management before this Tribunal as per the provisions under section 33(2)(b) of the I.D Act? 7. The learned Tribunal decided the issues no. 1 and 2 by holding that the domestic enquiry was not conducted in a fair and proper manner against the workman and the principles of natural justice was not strictly adhered to while conducting the enquiry and while recording the findings on the individual charges. The learned Tribunal came to the findings that the documents relating to several charges where not supplied to the workman in spite of demand made prior to the commencement of the enquiry. It has further been held that the findings have been recorded without considering the evidence on record and the workman was not given opportunity to examine a material witness on whose testimony the findings of guilt was recorded. 8. Further, while deciding the issue no. 3 and 4 the learned Tribunal held in para 19 as under:- “19. It has further been held that the findings have been recorded without considering the evidence on record and the workman was not given opportunity to examine a material witness on whose testimony the findings of guilt was recorded. 8. Further, while deciding the issue no. 3 and 4 the learned Tribunal held in para 19 as under:- “19. Referring to the admitted facts of their case, it appears that the Cheque by which the purported payment of one month’s wages was made, was dated 04.12.2012 though the effective date of dismissal was mentioned as 08.12.2012 while application under section 33(2)(b) of the I.D Act was filed before this Tribunal on 05.12.2012. The opposite party has taken an objection that the date of termination of service, the date of the Cheque by way of remittance of the purported one month’s wages and the date of filing of the application under section 33(2)(b) of the I.D Act, were not simultaneous and were in fact, made on three different dates and this is not in consonance with the conditions laid down under section 33(2)(b) of the I.D Act. Admittedly, the order of punishment was passed on 08.12.2012 and even prior to taking the decision for terminating the services, the Management had remitted the purported amount of one month’s wages and other amounts, to the Opposite Party at least 4 days in advance, i.e on 04.12.2012. Furthermore, even without recording any final decision for terminating the services of the Opposite Party and before serving her the order of dismissal, the application under section 33(2)(b) of the I.D Act has been filed by the Management on 05.12.2012 purportedly for approval of a proposed action. It is apparent from the above that the act of dismissal, remittance of the one month’s wages and filing of the application under section 33(2)(b) of the I.D Act, did not constitute parts of the same transactions. Under such circumstances, the inference is that the mandatory conditions as laid down under section 33(2)(b) of the I.D Act, have not been complied with by the Management in the manner prescribed.” 9. Under such circumstances, the inference is that the mandatory conditions as laid down under section 33(2)(b) of the I.D Act, have not been complied with by the Management in the manner prescribed.” 9. It is contended by the learned counsel for the petitioner that the tribunal while deciding the application of the petitioner under section 33(2)(b) of the Act, 1947 has travelled beyond the jurisdiction conferred to it and thus on this score alone, the order of the learned Tribunal is liable to be set aside. In support of the said contention, reliance has been placed on a judgment rendered by the Hon’ble Supreme Court in the case of Cholan Roadways Ltd. (supra) wherein it has been held thus:- “18. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. vs. R.N. Banerjee. While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regard the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn’s case, (supra) this court stated: “A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. vs. The Workers of the Company).” 10. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. vs. The Workers of the Company).” 10. In the aforesaid judgment, their Lordships while referring to another judgment rendered in the case of Martin Burn Ltd. vs. R.N. Banerjee ( AIR 1958 SC 79 ), held that at the time of exercising jurisdiction under Section 33(2)(b) of the Act, 1947, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regards the validity or otherwise of the domestic enquiry held against the delinquent. It has to be kept in mind that even after the permission or approval granted under section 33(2)(b) of the Act, 1947, the impugned order of dismissal is amenable to challenge in an appropriate proceeding before the Industrial Tribunal in terms with the provision of the Industrial Disputes Act, 1947. It has further been held that while determining whether a prima facie case has been made out or not, the relevant consideration is whether on the evidence led, it is possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. 11. It is thus well settled that jurisdiction of the Tribunal while deciding an application under section 33(2) (b) of the Act, 1947 is limited only to the extent that a prima facie case should be made out against the delinquent so as to prevent the victimization of an employee by the management’s action. The findings of the Industrial Adjudicator on an application under Section 33(2)(b) of the Act, 1947 is “prima-facie” and not “final” and not binding in a subsequent industrial dispute, thus it is not desirable for the Tribunal to consume much time in deciding the application under section 33(2)(b) of the Act, 1947. 12. However, on perusal of the impugned order, it appears that the learned Tribunal while disposing of the application under section 33(2)(b) of the Act, 1947 has gone deep into the evidences of the parties and observed that the finding of the enquiry officer has been recorded without considering the evidences on record. 12. However, on perusal of the impugned order, it appears that the learned Tribunal while disposing of the application under section 33(2)(b) of the Act, 1947 has gone deep into the evidences of the parties and observed that the finding of the enquiry officer has been recorded without considering the evidences on record. It has further been held that the respondent-workman has not been given opportunity to cross-examine one material witness. However on perusal of the evidence of the inquiry officer-Mrs. Banani Verma, Advocate, it would be evident that as per her deposition, the respondent was given opportunities on 18.08.2012 and 25.08.2012 to cross-examine MW. 1 namely Mayank Budhia, but the respondent-workman refused to cross-examine him. Moreover, on perusal of the record, it appears that on the allegation of the respondent-workman, the management had appointed an independent inquiry officer namely Mrs. Banani Verma, Advocate, who conducted the enquiry in presence of the respondent-workman and only thereafter submitted the report on the basis of which, the impugned action of dismissing the respondent-workman has been taken. Thus, action of the management does not appear to be arbitrary. 13. The next submission of the learned counsel for the petitioner is that the learned Tribunal erroneously recorded the finding that the requirement of section 33(2)(b) of the Act, 1947 has not been followed by the petitioner while passing the impugned order of dismissal. It is contended that Section 33(2) of the Act, 1947 mandates that all the three requirements i.e payment of one month wages, dismissal and application for approval of the action of dismissal must be observed in a same transaction and it is not necessary that all the said three actions must be taken at the same time. 14. The learned Tribunal in its finding has held that the act of dismissal, remittance of the one month’s wages and filing of the application under section 33(2)(b) of the Act, 1947 did not constitute the parts of the same transaction as the payment of purported amount of one month’s wages and other amounts was made four days in advance i.e on 04.12.2012, the order of punishment was passed on 08.12.2012 and the application for approval of the impugned action of dismissal was filed on 05.12.2012 even without recording any final decision for terminating the services of the workman. 15. 15. Before coming to the merit of the case of the petitioner, it would be appropriate to go through section 33(2) of the Act, 1947 which provides as under:- “(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman- (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: PROVIDED that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.” 16. The aforesaid provision provides that during the pendency of any industrial proceeding against an employee, the employee may be punished or discharged for any misconduct not connected with the dispute for which the industrial proceeding is already pending. However, the proviso mandates that no such workman shall be discharged unless he has been given one month wages and an application has been made by the employer to the authority before which the previous proceeding is pending. 17. In the case of Filmistan (P) Ltd. (supra), the Hon’ble Supreme Court has held as under:- “12. We may deal with all the contentions together. The scope of Section 33 (2) (b) proviso has been dealt with very elaborately by this Court in Strawboard Manufacturing Co. v. Gobind. 17. In the case of Filmistan (P) Ltd. (supra), the Hon’ble Supreme Court has held as under:- “12. We may deal with all the contentions together. The scope of Section 33 (2) (b) proviso has been dealt with very elaborately by this Court in Strawboard Manufacturing Co. v. Gobind. The principle laid down in that case is as follows: "As we read the proviso, we are of opinion that it contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payments of wages and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes action under S. 33 (2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the tribunal for approval at the same time. When however we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done simultaneously but can only be done one after the other. What we mean is that the employer’s conduct should show that the three things contemplated under the proviso, namely (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application, are parts of the same transaction. If that is done, there will be no occasion to fear that the employee’s right under S. 33-A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case" 18. In the aforesaid judgment, it has been held that the three requisites for taking action under section 33(2) of the Act, 1947 namely, (i) dismissal or discharge, (ii) payments of wages and (iii) making an application for approval, have to be simultaneous and to be part of the same transaction. The question whether the application was made as part of the same transaction or at the same time when the action was taken, would be a question of fact and will depend upon the circumstances of each case. 19. The question whether the application was made as part of the same transaction or at the same time when the action was taken, would be a question of fact and will depend upon the circumstances of each case. 19. I have perused the judgment of the Hon’ble Supreme Court rendered in the case of State Bank of Bikaner (supra) wherein it has been held as under:- “4. The contention in the Strawboard Manufacturing Co. case. was that the application for approval must be made before the employer takes action and that view was negatived. In that case what the employer had done was to make the enquiry and decide to dismiss the employee. The order of dismissal was passed on February 1, 1960 and on the same day an application was made to the tribunal for approval of the action taken. The tribunal took the view that the application for approval had been made after the dismissal of the employee and the same should have been made before dismissing him. That view was held by this Court to be incorrect. This Court held that S. 33 (2)(b) requires the employer to do three things contemplated in the proviso, namely, (1) the dismissal or discharge of the employee. (2) payment of wages and (3) the making of the application as parts of the same transaction. That case, however, did not lay down that if an employer takes the precaution of making an application after the necessary enquiry and before actually taking any action for approval of the proposed action, such an application would not be maintainable. That case was concerned with the latest time by which the employer must make the application for approval after he had taken the action of which the approval was sought. But there is nothing in S. 33(2)(b) which requires that an application for approval can only be made after the action has been taken. We see nothing in principle against the employer making an application under Section 33 (2) (b) for approval of the proposed action before the actual action is taken. Such a course on the part of the employer would, if anything be more favourable to the employee and would not in our opinion be against the provisions contained in S. 33 (2) (b). Such a course on the part of the employer would, if anything be more favourable to the employee and would not in our opinion be against the provisions contained in S. 33 (2) (b). We are therefore of opinion that the labour court was wrong in holding that an application made by an employer under S. 33 (2) (b) for approval of the action he proposes to take is not entertainable and that such an application must necessarily be made after the action of which approval is sought is taken. All that the Strawboard Manufacturing Co. case[(1962) supp.(3) SCR 618; AIR 1962 SC 1500 ] lays down that the application can be made after the action of which the approval is sought has been taken and that when this happens the three conditions in the proviso to S. 33 (2) (b) must be shown to be parts of the same transaction. But if an employer chooses to make an application under S. 33 (2) (b) for approval of the action he proposes to take and then takes the action we find nothing in S. 33 (2) (b) which would make such an application not maintainable. Such an application in our opinion would not be contrary to the provisions of S. 33 (2) (b) read with the proviso thereof and would be maintainable. The view of the labour court therefore that the application by the appellant in the present case was not maintainable must fail.” 20. In the aforesaid judgment, the Hon’ble Supreme Court has held that there is nothing in Section 33(2)(b) of the Act, 1947 which requires that an application for approval can be made only after the action has been taken, rather such a course on the part of the employer would in fact be more favourable to the employee and would not be against the provisions of Section 33 (2) (b) of the Act, 1947. The only requirement of section 33(2)(b) of the Act, 1947 is that all the three actions i.e the dismissal or discharge of the employee, payment of wages and making the application must be part of the same transaction. 21. On perusal of the order passed by the Tribunal, it is apparent that the Tribunal has exceeded its jurisdiction in re-appreciating the evidence which had been laid before the disciplinary authority. 21. On perusal of the order passed by the Tribunal, it is apparent that the Tribunal has exceeded its jurisdiction in re-appreciating the evidence which had been laid before the disciplinary authority. In a proceeding under Section 33(2)(b) of the Industrial Disputes Act, 1947, the Tribunal is only required to find out whether the disciplinary proceeding is conducted in consonance with the principles of natural justice and whether there is a prima facie case for according approval. The scope of Section 33(2)(b) of the Act, 1947 is quite limited as compared to general industrial disputes relating to the order of termination. Admittedly, in the present case, the application for approval was made on 05.12.2012 and the order of dismissal was passed on 08.12.2012 and on the same date, payment of one month wages was made by a cheque dated 04.12.2012. Thus, all the said three proceedings have been made in same transaction. In view of the judgment of Balai Chander Sen (supra), the filing of application prior to passing of order of dismissal does not vitiate the action of the management. So far the payment of one month wages is concerned, the respondent herself has deposed before the learned Tribunal that the said amount is only 75 paise less than her actual one month salary. 22. In view of the aforesaid discussions, the order dated 26.09.2013 passed by the Presiding Officer, Industrial Tribunal, Ranchi in Misc. Case no. 01 of 2012 is quashed and set aside. 23. The writ petition is accordingly allowed.