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2021 DIGILAW 203 (CAL)

Cygnet Industries Limited v. State Of West Bengal

2021-04-06

ABHIJIT GANGOPADHYAY

body2021
JUDGMENT Abhijit Gangopadhyay, J. - This writ application has been filed by the employer company for setting aside/quashing the final award dated 19.02.2020 passed by the Learned First Industrial Tribunal, West Bengal in Case No. VIII-02/2011. In this case the respondent No. 3/employee (the employee hereinafter) was dismissed from service by the writ petitioner (the employer hereinafter) with effect from 11th November, 2009. This dismissal was a result of a domestic enquiry held by the employer. Tribunal has set aside the order of dismissal. 2. The employee raised a dispute in respect of such dismissal and the Government of West Bengal referred the matter for adjudication and for submitting the award to the State Government. The reference is of 04.01.2011. 3. The dispute is pending for last nearly 12 years. 4. The employee challenged the validity of the domestic enquiry before the Tribunal contending, he was working in the establishment for 19 (nineteen) years honestly, faithfully and with full satisfaction of the employer, but the employer by issuing a charge-sheet dated 02.08.2008 alleged that on 31.07.2008 while on duty he was caught red handed by the Supervisor, when he was throwing 08 (eight) Nos. Butt Cakes of 102 Bright Denier in a cartoon which was misconduct as he threw away valuable goods as waste. The allegation against him was that it was against working norms and system of the department and the employee had deceptive motive in doing so. The following three charges were brought against the employee on the basis of certified standing orders of the company which are as follows: (i) Dishonesty (ii) Wilful damage to or loss of company's good (iii) Act subversive of discipline. The Tribunal after adjudication held that charge of dishonesty was not proved and the two other charges of wilful damage or loss to company's goods and act subversive of discipline were proved in the domestic enquiry. Whether the punishment was justified was a question required to be decided. 5. Before the Tribunal evidences were adduced by the parties and documents were marked as exhibits and there is no allegation of the employer that the Tribunal adjudicated the matter by violating well established legal principles or violating the principles of natural justice or ignoring the law of the land. 5. Before the Tribunal evidences were adduced by the parties and documents were marked as exhibits and there is no allegation of the employer that the Tribunal adjudicated the matter by violating well established legal principles or violating the principles of natural justice or ignoring the law of the land. The allegation of the employer is that the Tribunal has passed an order which is contradictory as on one hand it has been held that out of three charges two have been proved and on the other hand it has been held that the termination of the employee was illegal, arbitrary and unjustified. The real question involved in this matter is whether the decision of the tribunal is contradictory or not. As the employee during the course of the proceeding reached age of superannuation he could not be reinstated and therefore, the Tribunal directed the employer to pay the full back wages from the date of termination i.e. from 11.11.2009 till the date of the superannuation. 6. The case of the employer wholly revolves on the contention that when the result of a departmental enquiry has been upheld in respect of two charges by the Tribunal itself, the Tribunal does not have the power to grant full relief to the employee. The contentions of the employer have been framed as grounds of the writ application. Those grounds are as follows and apart from these grounds/contentions no other ground/contention has been raised by the employer during hearing of the matter. "III. For that it is a trite law that once validity of domestic enquiry is established, the only question open to adjudication before a Learned Tribunal is that of "quantum of punishment". In the case at hand despite holding the domestic enquiry to be valid and legal, the Learned Tribunal, vide the impugned award dated 19.02.2020, quashed the order of punishment thereby completely exonerating the respondent workman from the charges proved against him in a valid domestic enquiry. IV. For that the Learned Tribunal vide the impugned order, in effect, has quashed the entire disciplinary proceeding against the respondent workman which not only renders its own order dated 20.08.2015 nugatory but also vitiates the well settled principle of service jurisprudence. V. For that The Ld. IV. For that the Learned Tribunal vide the impugned order, in effect, has quashed the entire disciplinary proceeding against the respondent workman which not only renders its own order dated 20.08.2015 nugatory but also vitiates the well settled principle of service jurisprudence. V. For that The Ld. Tribunal, while passing the impugned award, did not adjudicate justifiability of quantum of the punishment imposed as to whether the same was proportionate to the misconduct already proved. On the contrary, the Ld. Tribunal had gone on to adjudicate validity of imposition of the punishment and thereupon, striking the same down by completely exonerating the respondent workman. Such exercise at the behest of the Ld. Tribunal is ex facie arbitrary and beyond the scope of its jurisdiction, established by law". 7. In support of his contention the employer has relied on Section 11A of the Industrial Disputes Act, 1947. Here Section 11A of the said Act is required to be taken note of which is as follows: "11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter". (Emphasis mine) From the plain reading of Section 11A it is found that in the course of the adjudication proceeding if the Labour Court, Tribunal or National Tribunal is satisfied that the order of discharge or dismissal was "not justified" it may by its award set aside the order of discharge or dismissal and direct reinstatement of the workman and apart from this power of setting aside the order of discharge or dismissal, the Tribunal has been empowered to give such other relief including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances may require. Thus, the statue gives the Tribunal both the powers i.e. (i) To set aside wholly the order of discharge or dismissal, or (ii) To give other relief which includes award of lesser punishment in lieu of discharge or dismissal. Therefore, the contention of the employer that the Tribunal cannot exonerate the employee when the misconduct of the charge has been proved is not supported by the statue. If the punishment is found to be "not justified" the tribunal has the power to exonerate the employee by setting aside the order of dismissal. 8. In support of his contention the employer has relied upon the judgment of Kurukshetra University -vs- Prithvi Singh, (2018) 4 SCC 483 . The employer has granted much emphasis on paragraph 19 of the said judgment which is as follows: "19. Once the appellant employer was able to prove the misconduct/charge before the Labour Court, then it was for the Labour Court to decide as to whether the termination should be upheld or interfered by exercising the powers under Section 11-A of the ID Act by awarding lesser punishment provided a case to that effect on facts is made out by the respondent employee". From the above quoted paragraph 19 of the judgment relied upon by the employer it is found that if the misconduct/charge is proved by the employer even then the Labour Court/ Tribunal has the power to decide whether the termination should be upheld or interfered by exercising the powers under Section 11A of the said Act. Here also the Supreme Court recognises the Court's/Tribunal's powers to interfere with the order of termination. Here also the Supreme Court recognises the Court's/Tribunal's powers to interfere with the order of termination. Section 11A gives that power of interference with the order of discharge or dismissal which can go even to the extent of setting aside the order of discharge or dismissal which is clear from a plain reading of said Section 11A. Therefore, paragraph 19 of the said judgment relied upon by the employer really goes against the employer instead of supporting him as the Supreme Court has not given any different interpretation of Section 11A saying that tribunal can only give lesser punishment and cannot set aside the order of dismissal or discharge. A reading of the said judgment as a whole shows that no such question as to power of the Labour Court/Tribunal under Section 11A was there before the Supreme Court whereby a situation was there where Supreme Court was requested to construe the provision made by the legislature contrary to the plain meaning of the section. Further, in paragraph 17 of the said referred judgment it has been held that if the domestic enquiry is held legal and proper then the next question which arises for consideration is whether the punishment imposed on the delinquent employee was proportionate to the gravity of the charge levelled against him or it called for any interference to award any lesser punishment by exercising powers under Section 11A of the ID Act. Here the question of proportionality of the punishment to the gravity of the charge is found. In this paragraph No. 17 reference to Section 11A of the ID Act shows that the interference of the Tribunal may go to the extent of a lesser punishment or may go to the extent of setting aside the order of discharge or dismissal. 9. The Supreme Court also has not given any such restricted meaning by using the words "lesser punishment" to limit the power of the Tribunal only to give a lesser punishment rejecting the power of setting aside dismissal or discharge given by the legislature to the Tribunal by Section 11A. Neither the Supreme Court has put a chain on the power of the Tribunal under Section 11A by this judgment relied upon by the employer nor any such meaning has been given by the Supreme Court in the said judgment. Neither the Supreme Court has put a chain on the power of the Tribunal under Section 11A by this judgment relied upon by the employer nor any such meaning has been given by the Supreme Court in the said judgment. Thus, the above judgment does not extend any support to the case of the employer. 10. The employer has also relied upon another judgment reported in ( Managing Director, Balasaheb Desai Sahakari S.K. Limited -versus- Kashinath Ganapati Kambale, (2009) 2 SCC 288 ). Observation made in paragraph 15 of the said judgment which has been emphasised by the employer is that the Labour Court ordinarily should not interfere with the discretion exercised by the employer unless the same is found to be inconsistent with the provisions of a statue or otherwise perverse or unjust. (Emphasis mine) Relying on this the employer submits that the Tribunal neither has held that the discretion exercised by the employer is inconsistent with the provisions of a statue, nor has held that it is otherwise perverse nor it has held that it is unjust and therefore, the award passed by the Tribunal granting full back wages from the date of his dismissal was illegal. On a reading of the impugned award it is evident that in view of the tribunal, formed after adjudication, the termination was not justified and not legal; rather it was absolutely arbitrary and unjustified. The reason for reaching such conclusion as to unjust termination I only quote two paragraphs of the impugned award (vide page 109 and 110 of the writ application). "It is revealed that the main allegation against the Workman that he was throwing Butt Cakes of 120 bright Denier in a cartoon near CCR Door for which the charge-sheet Domestic Enquiry and the findings of this Tribunal were followed. It is further noticed that the concerned Workman was issued show-cause and charge-sheet for doing similar acts or deeds on 16.01.1992 for first time when he was not a permanent worker. On 17.07.1996 for the 3rd time he had done or had mistaken similar incident/accident whichever may be said and in all cases he was exonerated even he was permanent (sic) by the Company in 1994 during those process. Then similar incidents happened on 17.07.1996, 06.11.1998, 09.01.2002, 09.11.2004, 16.04.2007, 29.04.2008 and 31.07.2008. Except last 02 (two) incidents never the similar incident happened or occurred within a year. Then similar incidents happened on 17.07.1996, 06.11.1998, 09.01.2002, 09.11.2004, 16.04.2007, 29.04.2008 and 31.07.2008. Except last 02 (two) incidents never the similar incident happened or occurred within a year. Always occurred 01-03 years gap. So it cannot be said the Workman was a habitual offender specifically when dishonesty has not been proved and the total loss of the Company has not been specially mentioned it cannot be safe to reach the conclusion that the Workman deliberately had done the act for causing losses to the Company arbitrarily for which it can be called a regular misconduct rather considering the scenario I am of the opinion that it may be considered as an accidental case of instances". Sitting in a writ court, which is not hearing of an appeal against the award I do not find any such illegality or any perversity for which interference can be made in respect of the allegations that the Tribunal has not held the dismissal as unjust. In fact the Tribunal has held the punishment as unjust since the act of the employee was not a regular case of his misconduct and these were accidental instances, as has been held by the Tribunal. 11. The employer has relied upon another judgment reported in (popularly known as Firestone case, (1973) AIR SC 1227 ). Relying upon paragraph 38 of the said judgment (as reported) the employer submits that the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can under such circumstances award of the workman only lesser punishment instead. On the basis of such observation the employer has submitted that the employee cannot be exonerated fully and no order for payment of full back wages from the date of termination could be granted. Such submission is wholly misleading and meritless. If we read the observation of the Supreme Court made in paragraph 31 of that judgment which, inter alia, says that "It follows that the construction which furthers the policy and object of the Act and is more beneficial to the employee has to be preferred. Another principle to be borne in mind is that the act in question which intends to improve and safeguard the service condition of an employee demands an interpretation liberally enough to achieve the legislative purpose". Another principle to be borne in mind is that the act in question which intends to improve and safeguard the service condition of an employee demands an interpretation liberally enough to achieve the legislative purpose". In the said paragraph 31 it has further been held "therefore, it will have to be found from the words of the section, whether it has altered the entire law as laid down by the decision, and, if so, where there is a clear expression of that intention in the language of the section". There is no dispute that Section 11A is a provision which is beneficial to the employees which demands liberal interpretation. Further in Section 11A it has not been stated that the Tribunal only has the power to give lesser punishment and it cannot set aside the punishment of discharge or dismissal. In paragraph 36 of the said judgment it has been, inter alia, observed that "even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the tribunal can now differ from that finding in a proper case and hold that no misconduct is proved". This observation clearly shows that Supreme Court has never given any interpretation to Section 11A of the aforesaid Act to the effect that the Tribunal cannot differ from the finding of misconduct of an employee. In paragraph 37 of the said judgment it has been, inter alia, observed that "it has to be remembered that the 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". (Emphasis mine) After knowing such views of the Supreme Court in some paragraphs before paragraphs 38 of the said judgment, it is wholly absurd to suggest that the Tribunal under such circumstances award to the workman only lesser punishment instead. In the same paragraph (paragraph 38) Supreme Court has also observed that once the misconduct is proved the Tribunal had to sustain the order of punishment "unless it was harsh in indicating victimisation". (Emphasis mine) 12. In the present case the Tribunal has held that dishonesty has not been proved; it is further held that the loss to the company has not been quantified in terms of money. Therefore, the only charge that remains, to consider the proportionality of punishment, is "indiscipline". (Emphasis mine) 12. In the present case the Tribunal has held that dishonesty has not been proved; it is further held that the loss to the company has not been quantified in terms of money. Therefore, the only charge that remains, to consider the proportionality of punishment, is "indiscipline". Now, if the Tribunal holds that for the charge of "indiscipline" the order of punishment of dismissal cannot be sustained as it is harsh and therefore, the order of dismissal is set aside as being unjust, the Tribunal cannot be blamed. 13. If we go by the observation made by the Supreme Court in paragraph 38 without taking note of the observations of the Supreme Court made in different paragraphs before paragraph 38 we will be misled as we will not know the effect of the judgment as a whole. For such reason a principle has been reiterated several times by the Supreme Court and the high Courts that a judgment has to be read as a whole. Culling out one paragraph from the whole body of the judgment to establish a point is not acceptable and the employer has made the same mistake in relying upon only paragraph 38 without considering the other observation made in the same judgment specially in paragraphs 31, 36 and 37. 14. The Supreme Court never held that the Tribunal can only award lesser punishment and never held that Tribunal cannot set aside the punishment of dismissal or discharge. The Supreme Court never meant that the tribunal is denuded of the power given to it by the legislature of setting aside the punishment of dismissal or discharge. If the Hon'ble Supreme Court meant it, this could easily have been said by Supreme Court. But it has not been said. In the name of understanding an order of Supreme Court no one is permitted to read something in an order of the Supreme Court which is not there in the order/observation. Therefore, this judgment of Supreme Court in Firestone case does not also support the contention of the employer. 15. But it has not been said. In the name of understanding an order of Supreme Court no one is permitted to read something in an order of the Supreme Court which is not there in the order/observation. Therefore, this judgment of Supreme Court in Firestone case does not also support the contention of the employer. 15. Regarding the other contention as has been raised in ground IV and V I hold that the employee has demonstrated from the documents before the Court that the company was granted opportunity to adduce evidence in respect of the dishonesty and referring to evidence adduced (not annexed to the writ application by the employer but was placed before this Court by the employer without objection of the employer) that the officer of the employer who came before the Tribunal to give evidence on the question of dishonesty was an employee who entered into service in 2015 whereas the incident was of 2008 and who admitted that he did not have any personal knowledge as to the dishonesty of the employee and who also deposed that he did not seat in the factory, his office was in Kolkata, (whereas the charge of dishonesty was of 2008 and, allegedly committed in the factory). Therefore, it has been submitted by the employee that not only dishonesty has not been proved, the person who came before the Tribunal on behalf of the employer to adduce evidence on the question of dishonesty was wholly an unreliable witness without having any personal knowledge to depose. It has been submitted by the employee that no other witness of the company gave any evidence as to the dishonesty of the employee/respondents. 16. Tribunal has the power to set aside the order of dismissal. Tribunal found that there was no proof of dishonesty. It also found that money value of the loss of the company was never disclosed. As a consequence if the Tribunal finds that the dismissal was not justified only for act of indiscipline, the award cannot be assailed as there is no legal perversity in it. If, as a result, the whole proceeding is quashed as unjust it cannot be alleged as against the principle of service jurisprudence as has been alleged in ground No. IV. If, as a result, the whole proceeding is quashed as unjust it cannot be alleged as against the principle of service jurisprudence as has been alleged in ground No. IV. This ground canvassed before this court that the Learned Tribunal has violated the principles of service jurisprudence by quashing the enter disciplinary proceeding does not have any merit. First, the entire disciplinary proceeding has not been quashed. It has been stated by the Tribunal that the charge of dishonesty has not been proved. In respect of other two charges the Tribunal has held that the company's loss has not been quantified and the other charge of discipline is not of such a magnitude for which punishment of dismissal can be given. The Tribunal proceeded on the question of justification and proportionality of punishment in comparison with the charge - this is within the jurisdiction of the Tribunal. 17. Regarding ground V/contention I hold that the Tribunal has clearly and categorically assessed and adjudicated the justifiability of punishment and has not held anything as to the validity of imposition of punishment. Punishment given is unjust which comes to light from the observations of the Tribunal. 18. Therefore, the Tribunal has not made any mistake in granting the relief of full back wages to the employee. As a result the writ application is dismissed. 19. No costs.