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2020 DIGILAW 286 (GAU)

Iringmara Tea Estate v. State Of Assam

2020-02-27

NELSON SAILO

body2020
JUDGMENT 1. Heard Mr. B. Purkayastha, the learned counsel for the petitioner and Mr. R. Dhar, the learned counsel for the respondent No. 6. Also heard Mr. M.R. Adhikari, learned State Counsel appearing for the respondent No. 1. 2. The petitioner is the Iringmara Tea Estate and is represented by its Manager. Being aggrieved with the Award dated 31.05.2016 passed by the Industrial Tribunal, Cachar, Silchar in Reference Case No. 3/ 2011, whereby the Tribunal directed the petitioner to reinstate the respondent No. 6 into service with back wages by holding his dismissal from service on the basis of the Inquiry Report of the Inquiry Officer to be not proper has filed the instant writ petition. 3. Brief facts of the case according to the petitioner is that the petitioner is a registered Company under the Companies Act dealing with tea business and having its registered office at Kolkata. The petitioner companys tea garden viz; Iringmara Tea Estate is situated in the district of Cachar, Assam and for the purpose of tea cultivation, maintenance and production of tea, the Management of the Tea Estate has engaged a number of staff labours on regular as well as on temporary basis. 4. The respondent No. 6 was a daily wage earner of the tea estate and he was engaged to supervise Lati Safai (cleaning creeper) work at Section No. 9 New Tilla from 17.11.2008 onwards as per the task fixed by the Management. The respondent No. 6 however did not follow the order of the Management and engaged the workers in different types of work and recorded the wages at his own discretion against those workers. According to the petitioner, the same is reflected in the Sardar Reports of 18.11.2008, 19.11.2008 and 21.11.2008. He also instigated the workers against the Management with anti-Management attitude etc. On receipt of the above report, the Management issued a show cause notice to him on 02.12.2008 asking him to submit a written explanation within 48 hours on the following allegations/ charges:- (i) Not receiving the letter from the Management and misbehaved with the Tilla Babu. (ii) Violating the lawful order of Management regarding performance as well as unlawful behavior. (iii) Continuously instigating the worker against the Management and creating undesirable working atmosphere. (iv) Encroachment of garden land. 5. (ii) Violating the lawful order of Management regarding performance as well as unlawful behavior. (iii) Continuously instigating the worker against the Management and creating undesirable working atmosphere. (iv) Encroachment of garden land. 5. Accordingly, the respondent No. 6 was asked to submit his written explanation but as he did not respond, the Management again issued a reminder on 06.12.2008. The respondent No. 6 then submitted his reply on 07.12.2008. However, the Management not being satisfied with his reply, decided to hold a domestic inquiry against him and he was accordingly informed vide letter dated 07.12.2008. Thereafter, the Management vide letter dated 19.12.2008 informed the respondent No. 6 that the domestic inquiry will take place on 22.12.2008 at 11.30 pm and asked him to report to the General Manager of the Tea Estate. The respondent No. 6 was also informed that he will be given full opportunity to place his defence by cross examining the companys witnesses and also to examine his own witnesses. He was further informed that he will be allowed to be represented in the inquiry by any of his co-worker and he was therefore asked to submit the name of the co-worker of his choice in advance. 6. As per the schedule, the inquiry took place in the presence of the Inquiry Officer, Sh. P.S. Bhattacharjee and the Presenting Officer Sh. Ranjit Mohan Das and also two (2) independent observers namely, Secretary, Bagan Panchayat, President, Bagan Panchayat and also the respondent No. 6 himself. Thereafter, the Inquiry Officer submitted his Inquiry Report on 29.12.2008 to the Management for taking a decision. As per the report, the respondent No. 6 was found guilty of willful insubordination and willful violation of lawful order of the Management. After examination of the Inquiry Report, the Management decided to terminate the respondent No. 6 from his assignment and accordingly, vide letter dated 31.12.2008, the respondent No. 6 was informed that he was discharged from service. 7. As per the report, the respondent No. 6 was found guilty of willful insubordination and willful violation of lawful order of the Management. After examination of the Inquiry Report, the Management decided to terminate the respondent No. 6 from his assignment and accordingly, vide letter dated 31.12.2008, the respondent No. 6 was informed that he was discharged from service. 7. Thereafter, the respondent No. 6 represented by the Secretary, Barak Cha Sramik Union, Silchar (respondent No. 5) intimated the Commissioner and Secretary to the Government of Assam, Labour and Employment Department (respondent No. 1) regarding his termination by the petitioner/Management and pursuant thereto, vide Notification dated 06.01.2011, the respondent No. 1 referred the matter to the Industrial Tribunal, Cachar, Silchar (respondent No. 2) for adjudication of the matter as per Section 7 (A) of the Industrial Disputes Act, 1947. Accordingly, a reference case i.e. Reference Case No. 3/2011 was registered against the petitioner before the Presiding Officer, Industrial Tribunal, Silchar and notice was issued to the petitioner on 23.02.2011. 8. In the proceeding, the respondent No. 5 filed written statement on behalf of respondent No. 6 on 06.08.2012 stating that the termination order was illegal and was passed without following due procedure of law and the rules of domestic enquiry as provided by the Industrial Disputes Act, 1947. It was further stated that adequate opportunity was not provided by the Inquiry Officer during the course of the inquiry to adduce any defence witness by the respondent No. 6. Likewise, the Management also filed written statement stating that the respondent No. 6 was a daily rated temporary worker and therefore, he was not entitled to get a protection under the provision of Trade Union Act, 1926 as well as under the provisions of the Industrial Disputes Act, 1947. The Management also contended that the respondent No. 5 had no right to file written statement on behalf of the respondent No. 6 without their being any authorization. 9. During the reference proceeding, five(5) witnesses were examined i.e., two witnesses by the Management and three witnesses by the workman. The MW1, the Manager of the garden in his examination-in-chief stated that the respondent No. 6 was charge sheeted on 02.12.2008 with four charges as already abstracted herein above. Reply submitted by him was not found to be satisfactory and it was not a reply on the specific allegations made. The MW1, the Manager of the garden in his examination-in-chief stated that the respondent No. 6 was charge sheeted on 02.12.2008 with four charges as already abstracted herein above. Reply submitted by him was not found to be satisfactory and it was not a reply on the specific allegations made. The Inquiry Officer was appointed as per Rule and he conducted domestic inquiry where there was one Presenting Officer and two independent observers. On completion of the inquiry on 22.12.2008, he submitted his inquiry report on 29.12.2008. On perusal of the findings of the Inquiry Officer, the Management found the respondent No. 6 guilty of the charges and accordingly, he was dismissed from service vide letter dated 31.12.2008. Upon completion of the pleadings and examination of the witnesses, the argument of the parties was heard by the Tribunal on 21.04.2016 and 25.04.2016. Thereafter, the award was passed on 31.05.2016 in the manner already stated herein above. 10. Mr. B. Purkayastha, the learned counsel for the petitioner/Management submits that the Tribunal rejected the case of the Management on three grounds:- a) The Management admitted in their written statement the allegation made by the poor man that the Management did not cooperate in the conciliation proceedings. b) The Management failed to prove that the domestic was held in accordance with the provision laid down by law and it also failed to prove the Inquiry Report for the reason that the Inquiry Officer expired after submitting his report to the Management. c) The Management witness No. 2, Ranjit Mohan Das did not submit any document to prove that he was appointed as Presenting Officer in the domestic inquiry. The learned counsel submits that the Tribunal has misread the documentary evidence and as a result, wrongly held that the Management admitted the allegation that it did not cooperate in the conciliation proceedings. He submits that this view was taken on the basis of the reply given by the Management in paragraph No. 13 of their written statement. However, the Management had in fact specifically denied the allegation made by the workman that it did not cooperate with the conciliation proceedings. 11. The learned counsel also submits that the view taken by the Tribunal that the domestic inquiry was not held properly is entirely a wrong view and because of non- examination of the document submitted/exhibited by the Management. 11. The learned counsel also submits that the view taken by the Tribunal that the domestic inquiry was not held properly is entirely a wrong view and because of non- examination of the document submitted/exhibited by the Management. In fact, the proceedings was clearly conducted strictly in accordance with the provision of law inasmuch as one Sh. Ranjit Mohan Das was appointed as Presenting Officer and inquiry was conducted by the appointed Inquiry Officer in front of two (2) independent observers who were the Secretary and the President of Bagan Panchayat and they remain presence all along during the inquiry. The Management examined two witnesses who were thoroughly cross examined by the workman. Therefore, the findings of the Tribunal that the inquiry was not conducted as per the provision of law is clearly misconceived. 12. The learned counsel further submits that the Tribunal rejected the Management witness No. 2 solely for the reason that he did not produce the appointment order issued by the Management appointing him as the Presenting Officer. He submits that the inquiry proceedings exhibited before the Tribunal clearly shows his appointment as the Presenting Officer inasmuch as every page of the inquiry proceedings bear the signature of the Presiding Officer. Likewise, the signature of the independent observers and the signature of the respondent No. 6 is also appended in the proceedings. Mr. B. Purkayastha further submits that the inquiry report was filed and proved by the first witness of the Management and was exhibited as exhibit No. 6, the said witness was examined and cross examined during the proceedings before the Tribunal. Therefore, merely because of the Inquiry Officer expired after submitting his inquiry report, the inquiry report cannot be discarded and its validity would continue. He submits that in the absence of the author, a document can still be proved even through cross examination of the person who has presented before the Court. The presumption that the workman is a poor person and the admission of the Management of having not cooperated in the conciliation proceedings cannot by itself nullify the termination order of the workman if the inquiry is found to be proper and justified. Mr. B. Purkayastha therefore submits that under the facts and circumstances, the award passed by the Tribunal without properly appreciating the stand of the Management cannot be sustained and the same should be set aside and quashed. 13. Mr. B. Purkayastha therefore submits that under the facts and circumstances, the award passed by the Tribunal without properly appreciating the stand of the Management cannot be sustained and the same should be set aside and quashed. 13. The Labour Commissioner, Assam (respondent No. 3) has filed an affidavit-in- opposition on 25.01.2017 contending inter alia that the General Secretary of the Cachar Cha Sramik Union, Silchar filed a complaint vide Order dated 19.02.2009 to the Assistant Labour Commissioner at Silchar on behalf of the respondent No. 6 against the Management for illegal dismissal of a respondent No. 6, a daily rated worker of the said tea estate. The Assistant Labour Commissioner, Silchar then directed the Labour Officer to take necessary action and the Labour Officer issued a letter to the General Manager of the tea estate on 06.03.2009 asking the Management to submit a written statement on the issue. But the Management instead of submitting the written statement, sent the letter dated 26.03.2009 to the Assistant Labour Commissioner. The Union pursued the matter vide the letter dated 11.05.2009 and later on, the Management submitted their written statement dated 19.05.2009 confirming the dismissal of the respondent No. 6. Thereafter, the Labour officer fixed a date for conciliation vide a communication dated 29.08.2009 fixing 17.09.2009 as the date for conciliation. The respondent No. 6 on the date fixed made a prayer for allowing him to submit his written statement as he could not procure the letter from the Management. As for the Management, they did not appear for the conciliation. The Assistant General Secretary of Barak Cha Sramik Union, Silchar submitted a written statement on behalf of the respondent No. 6 on 18.12.2009 denying the allegation leveled against the respondent No. 6 to be false, baseless and fabricated. The conciliation proceeding was again fixed for 12.02.2010 by the Labour Officer and while the respondent No. 6 appeared on the date, the Management again failed to appear for the conciliation process. The Labour Officer on being transferred, the new Labour Inspector-cum- Conciliation Officer, Cachar, Sh. A.U. Barbhuiya took up the matter and fixed 31.05.2010 as the date for conciliation proceedings. The respondent No. 6 presented himself on that date, but the Management yet again did not appear. A subsequent date i.e. 30.07.2010 which was yet again fixed also ended with the same result. A.U. Barbhuiya took up the matter and fixed 31.05.2010 as the date for conciliation proceedings. The respondent No. 6 presented himself on that date, but the Management yet again did not appear. A subsequent date i.e. 30.07.2010 which was yet again fixed also ended with the same result. The conciliation proceedings therefore ended in failure due to non-cooperation of the Management and the Conciliation Officer submitted failure report vide his letter dated 02.09.2010. Accordingly, vide the Government Notification dated 06.01.2011, the matter was referred to the Industrial Tribunal at Silchar. 14. Mr. R. Dhar, the learned counsel for the respondent No. 6 by referring to the affidavit-in-opposition filed by the respondent No. 6 on 10.02.2017 submits that the Management did not give full opportunity to the respondent No. 6 to place his defence by examining the companys witnesses and also his own witnesses. He submits that the domestic inquiry conducted by the Management was not in accordance with law and the Rules framed as per the provision of the Industrial Dispute Act, 1947. He submits that during the domestic inquiry, the respondent No. 6 was not even allowed to cross examine the witness of the Management. He therefore submits that the learned Tribunal is fully justified in coming to its conclusion in favour of the workman by directing the Management to reinstate him back into service with all back wages. 15. I have heard the submissions made by the learned counsels for the parties and I have perused the materials available on record including the records of the Tribunal. 16. As may be seen, the respondent No. 6 was working as a daily wage earner under the Management of the petitioner tea estate. Four charges were made out against him as already stated herein above and he was asked to submit a written explanation within 48 hours to show cause as to why appropriate disciplinary action should not be taken against him for having committed the acts as mentioned in the four charges. By the same show cause notice, he was also suspended from duty w.e.f. 03.12.2008. The reply given by the workman dated 07.12.2008 was not found satisfactory and therefore, the Management decided to proceed with a domestic inquiry to enquire into the charges leveled against him. By the same show cause notice, he was also suspended from duty w.e.f. 03.12.2008. The reply given by the workman dated 07.12.2008 was not found satisfactory and therefore, the Management decided to proceed with a domestic inquiry to enquire into the charges leveled against him. During the inquiry, both the parties examined two witnesses each and the Inquiry Officer after completing the inquiry submitted his Inquiry Report on 29.12.2008 by coming to a finding that the charges leveled against the workman was proved. The Inquiry Report concluded with the findings that the workman is guilty of - (a) willful insubordination. (b) willful violation of lawful order of the Management. 17. The Inquiry Officer thus opined that the same constituted gross misconduct as per the standing order in force in the garden. Pursuant to the Inquiry Report, the workman was dismissed from service of the tea estate with immediate effect vide Order dated 31.12.2008. From the order of dismissal, it may be seen that the General Manager of the Management stated that the Inquiry Officer found the workman guilty of (i) unlawful behavior, (ii) insubordination and (iii) anti-management activities. However, from a perusal of the Inquiry Report dated 29.12.2008, the conclusion arrived at by the Presenting Officer is that he found the workman guilty of willful insubordination and willful violation of lawful order of the Management. There is no finding of anti-management activities as stated in the order of dismissal and as reflected in charge No. 3 in the show cause notice dated 02.12.2008. From the Inquiry Report itself, it may be seen that the reply to the charge sheet given by the workman through the garden Panchayat was found to be objectionable, derogatory and beyond the norms of the plantation acts. According to the Inquiry Officer, the contents of the letter carries the view that the garden management is not competent or authorized to draw disciplinary proceedings without the consent of the Garden Panchayat and therefore, such action amounts to gross misconduct. 18. The workman on being examined during the domestic inquiry stated that he had gone through the charge sheet and he gave his reply to the Manager. On receipt of the charge sheet, he discussed with the garden Panchayat and handed over a copy of the same and the garden Panchayat gave a reply. 18. The workman on being examined during the domestic inquiry stated that he had gone through the charge sheet and he gave his reply to the Manager. On receipt of the charge sheet, he discussed with the garden Panchayat and handed over a copy of the same and the garden Panchayat gave a reply. He stated that he did not reply to the charge sheet by himself and he cannot exactly say what was written by the Panchayat to the Manager. Management witness No. 1, Sh. Shankar Lal Das stated in his examination-in-chief that he was serving as Tilla Babu in the garden. The respondent No. 6 was engaged as Supervisor (Sardar) at No. 1 New Tilla to supervise cleaning of creeper. For cleaning creepers, wage is fixed as per the density. In No. 1 Tilla, wage was fixed as per person per acre and accordingly gave a direction to the Sardar. But after three days when he examined the work, he found the Sardar had ignored his direction and give Hazira to the labourers as per his own discretion. On asking him, the workman (Sardar) told him that work could not be done if he does it as per his direction. He stated that the Sardar did not obey his direction and in that process more time was consumed and more wages were incurred for nothing. When he gave the workman in writing to explain his action within three days, the workman torn the letter into pieces without giving any reply. Accordingly, he informed the Manager but the Manager did not say anything. 19. The workman before the Industrial Tribunal deposed that the witnesses brought against him by the Management was cross examined by his representative. As for the witness, he produced in support of his defence, the Management did not allow them to adduce evidence. 20. Sh. Sanatan Mistra, who was examined as workman witness No. 3 in his examination-in-chief stated that the respondent No. 6 was dismissed by the Management without making proper domestic inquiry. He was not given an opportunity to produce independent witnesses and to cross examine the Management witnesses and as such, the finding of the Inquiry Officer could not be the basis for dismissal of the workman. In his cross examination, the said witness reiterated the fact that domestic inquiry was not conducted properly. 21. Sh. He was not given an opportunity to produce independent witnesses and to cross examine the Management witnesses and as such, the finding of the Inquiry Officer could not be the basis for dismissal of the workman. In his cross examination, the said witness reiterated the fact that domestic inquiry was not conducted properly. 21. Sh. Nabendu Choudhury was examined as Management witness No. 1. In his examination-in-chief, he stood by the finding of the inquiry officer. In his cross examination, he stated that it was not a fact that the workman was dismissed from service in a vindictive manner because he was engaged with the Union activities. He deposed that the workman did not place demand on behalf of the Union and for which he has been dismissed. 22. Sh. Ranjit Mohan Das was examined as Management witness No. 2 and in his examination-in-chief, he too deposed that due consideration was followed in the domestic inquiry and the workman was given all the opportunity. In his cross examination, he reiterated what is stated in the examination-in-chief. 23. From the above, it may be seen that the workman was examined as workman witness No. 1, Sh. Karthik Kanita as workman witness No. 2 and Sanatan Mistra as workman witness No. 3. From an overall appreciation of the materials available on record, although the workman contends that due opportunity was not granted to him to make his defence but besides such stand, there are no materials or evidence to show that adequate opportunity was not granted to him. The workman has also not specified in clear terms who were the witnesses he wanted to produce and therefore, I find that the workman has failed to show what prejudice has been caused to him. On the other hand, the witness of the Management in the domestic inquiry clearly shows the conduct of the workman while the evidence led by the Management before the Tribunal maintaining that due process was followed in holding the inquiry and that all opportunity was granted to the workman, has not been shaken and the same can be appreciated from the exhibits of the Management. Exhibit-I is the copy of the charge sheet dated 02.12.2008, Exhibit-II is the suspension order dated 03.12.2008, Exhibit- III is the domestic inquiry letter dated 07.12.2008, Exhibit-IV is the domestic inquiry letter dated 19.02.2008, Exhibit-V is the proceeding of domestic inquiry against the workman dated 22.12.2008, Exhibit-VI is the finding of the Inquiry Officer dated 29.12.2008 and Exhibit-VII is the order of dismissal dated 31.12.2008. What appears to be one of the main reason for passing the impugned Award dated 31.05.2016 in favour of the workman is that the Tribunal came to a finding that the Management could not prove the Inquiry Report of the Inquiry Officer and that the Management did not produce any documentary prove to show the appointment of one Ranjit Mohan Das as the Presenting Officer. This reasoning and conclusion of the Tribunal in my considered view cannot be sustained inasmuch as it is not the case of the workman that there was no Presenting Officer or that no inquiry was conducted. The only crucial issue raised by the workman is that due opportunity was not granted to him. Therefore, upon having an overall consideration of the matter in its entirety, I find merit in the writ petition. Accordingly, the impugned Award dated 31.05.2016 passed by the Presiding Officer, Industrial Tribunal, Silchar, in Reference Case No. 3/2011 is hereby set aside. 24. The writ petition accordingly stands disposed of as allowed. Send back the LCR.