Patna High Court
The Tata Engineering And Locomotive ... vs The Presiding Officer, Industrial ... on 4 August, 1989
Equivalent citations: [1989(59)FLR648], (1990)ILLJ403PAT
JUDGMENT Satyeshwar Roy, J.
1.The petitioner-Company has challenged the validity of the order dated 3rd December, 1983 as contained in Annexure-11 in Reference Case No. 20 of 1981 by which respondent No. 1 held that the departmental proceeding initiated against the workman-respondent No. 2 was not fair and proper and Annexure-12, the award dated 28th January 1984 by which respondent No. 1 held that the order of discharge passed against respondent No. 2 was not justified and directed for his reinstatement. In the award, a direction was also given for payment of all back wages to him.
2. The workman at the relevant time was working as a Press Operator under the petitioner. He absented himself without any leave or permission with effect from 19th December, 1970. According to the petitioner, in view of his continued unauthorised absence, on 8th January, 1971 a charge sheet against the workman was drawn up and it was sent to his address at Jamshedpur as also his home address. The workman did not file any show cause and the departmental proceeding proceeded ex parte. The workman was found guilty of absence without permission or leave. By order dated 5th March, 1971 he was discharged.
3. On the 4th February, 1980 the workman for the first time wrote to the management that he had been arrested by the police on 19th December, 1970 in connection with a murder case and requested the management to allow him to join his duties. The company expressed regret, inter-alia, on the ground that the vacancy had been filled up and it was not possible to take back after nine years.
4. A dispute was raised by respondent No. 2 under the Industrial Disputes Act, 1947 (the Act) and the same was "referred for adjudication to respondent No. 1.
5. The petitioner filed an application for deciding the question of validity of domestic enquiry as a preliminary issue. By order dated 3rd December 1983 as contained in Annexure-11, it was held that the charge sheet had not been served on respondent No. 2 and the domestic enquiry was conducted without any notice to him. The domestic enquiry was held to be not fair and proper. Thereafter the parties led evidence before respondent No. 1 on this point. Respondent No. 1 did not believe the case of the management mat notice was served at the residence of the workman at Jamshedpur and was sent under certificate of posting to his home address. It held that respondent No. 2 had been discharged from service without holding any departmental enquiry and without giving any chance to him to defend himself. In view of this finding, it held that the discharge of respondent No. 2 was bad in law and directed for reinstatement with back wages as contained in Annexure-12.
6. The following facts are not in dispute. Respondent No. 2 never informed the management prior to 4th February, 1980 that he had been arrested in connection with a murder case on 19th December, 1970. He never applied for any leave. Although respondent No. 2 was released from jail as claimed by him on 15th December, 1977 on the ground that nothing was found against him by the Sessions Court, he did not report for duty. He was discharged from service on 5th March, 1971 after a valid departmental enquiry according to the management and without any valid enquiry according to respondent No. 2. He raised an industrial dispute in 1980 and the same was referred for adjudication on 13th May, 1981 to respondent No. 1.
Respondent No. 1 has held that charge sheet was never served on respondent No. 2 and no notice of the departmental enquiry was served on him. Nothing could be shown on behalf of the petitioner that these findings could not have been arrived at on the basis of the evidence led by the parties before respondent No. 1. We shall have, therefore, to proceed to dispose of the case by holding that respondent No. 2 was discharged from service without any charge sheet being served on him and without notice of any departmental enquiry.
7. It was submitted by Mr.Sinha on behalf of the petitioner that it was none of its duty to find put why respodent No. 2 was absenting himself from duty. It was also urged that his colleague might be knowing the factum of his arrest by the police in connection with a murder case, but it was the duty of respondent No. 2 to inform the petitioner about this feet and should have applied for leave. Whether leave would have been granted was a different issue. It was submitted that in view of the finding recorded by respondent No. 1 that respondent No. 2 was arrested in connection with a murder case on 19th December, 1970 and did not report for duty from that date till 4th February 1980 when he, for the first time, informed the petitioner about his arrest with a request to allow him to join, respondent No. 1 could not have held that the conduct of respondent No. 2 did not amount to misconduct within the meaning of the Standing Order No. 24(xi) of the Certified Standing Orders of the petitioner-Company. The petitioner was entided to discharge respondent No. 2 even without holding a departmental enquiry. Mr. Sinha urged that even if it was held that no formal charge was served on respondent No. 2, no useful purpose would have been served by doing that in view of the admitted position that respondent No. 2 was in jail in connection with a murder case. Reliance was placed by Mr.Sinha in Burn & Co. v. Their Employees: (1957-I-LLJ-226), Indian Iron & Steel Co. v. Their Workmen: (1958-I--LLJ-260), and Burn & Co. v. Their Workmen: (1959-I-LLJ- 450).
8. Mr. D.Dash, learned counsel appearing on behalf of respondent No. 2, submitted that as the absence of respondent No. 2 was not wilful, the petitioner could not have discharged him without giving an opportunity to respondent No. 2 of being heard. He submitted that since the person who had lodged the first information report was W.W.2 of the Security Department of the petitioner, it must be deemed that the management had information that respondent No. 2 had been arrested in connection with a murder case. Mr. Dash with reference to Calcutta Dock Labour Board v. Jaffar Imam (1965-II-LLJ- 112), and Workmen of Calcutta Dock Labour Board v. Employers in relation to Calcutta Dock Labour Board: (1973-II-LLJ-254), submitted that even if respondent No. 2 did not apply for any leave and did not inform about his arrest by the police, the petitioner was required to follow the rules of natural justice before issuing the order of discharge of respondent No. 2 with effect from 5th March, 1971.
9. I will notice first the three cases relied upon by Mr.Sinha. From the first Burn & Co. case (supra), it appears that a number of disputes were raised by the employees of the company and one of such was for reinstatement and/or payment of compensation of four employees including Ashimananda Banerjee and Panchanan Rana (for short 'Banerjee and Rana'). Banerjee and Rana both had been arrested under the West Bengal Security Act and detained in jail from 25th January, 1949 to 5th April, 1951. The Company terminated their service on 22nd April, 1949 on the ground of their continued absence. This was done by the Company without framing a charge or holding an enquiry. The disputes were referred to the Industrial Tribunal. The Tribunal with reference to Banerjee and Rana held that they should be re-employed to the post equivalent to their own posts as new incumbents. The employees preferred an appeal before the Labour Appellate Tribunal. The Appellate Tribunal ordered that Banerjee and Rana should not merely be re-employed but reinstated with continuity of service. The Company brought the matter to the Supreme Court. On these facts the Supreme Court With reference to Banerjee's case held as follows (1957-I-LLJ-226 at 234):
"We are unable to agree with this decision. The ground of discharge is the continued absence of the employee, and his inability to do work, and it is difficult to see what purpose would be served by a formal charge being delivered to him and what conceivable answer he could give thereto. The order of the Appellate Tribunal is manifestly erroneous and must be set aside."
Rana's case being similar to Banerjee, order by Appellate Tribunal in favour of Rana was also set aside.
10. In Indian Iron & Steel Co. (supra) seven workmen on different dates were taken in custody by the police and they remained in custody sometime. They applied for leave when in custody 45 but leave was refused. The Standing Orders of the Company, inter-alia, provided that any worker who was absent for fourteen consecutive days without permission will be automatically discharged. The services of the seven workmen were terminated. The Industrial Tribunal held that the termination of service was not justified as the Company should not have refused to grant them leave. This was confirmed by the Labour Appellate Tribunal. The Supreme Court relied on the first Burn & Co. (1957-I-LLJ-226) and observed as follows: (1958-I-LLJ-260 at 268):
"It is true that the arrested men were not in a position to come to their work, because they had been arrested by the police. This may be unfortunate for them; but it would be unjust to hold that in such circumstances the Company must always give leave when an application for leave is made. If a large number of workmen are arrested by the authorities in charge of law and order by reason of their questionable activities in connection with a labour dispute, as in this case, the work of the Company will be paralysed if the Company is forced to give leave to all of them for a more or less indefinite period. Such a principle will not be just; nor will it restore harmony between labour and capital or ensure normal flow of production. It is immaterial whether the charges on which the workmen are arrested by the police are ultimately proved or not in a Court of law."
11. From the second Burn & Co. case (1959-I-LLJ-450), it appears that one H.D.Roy happened to be the General Secretary of the Union. He had been systematically absenting himself without permission. He did not apprise the Company of his whereabouts. His services were dispensed with on the ground of continued absence. The Supreme Court observed that conduct of Roy was highly irregular and there should have been an application for leave. The Supreme Court held that Roy was not entitled to any relief and reversed the order of reinstatement passed by the Tribunal.
12. In the first Dock Labour Board case relied upon by Mr. Dash (1965-II- LLJ-112), the workmen were Dock Workers and were registered in the Reserved Pool. On 12th August, 1955, two workmen were arrested and detained under the Preventive Detention Act. After they were released from detention, they applied for allocation to registered dock employment, but instead of passing orders in favour of such allocation, the Dock Labour Board commenced disciplinary proceeding against them. Notices were issued on them to show cause why their services should not be terminated on 14 days notice in terms of the Regulation of Employment Scheme on the ground that they had been detained for acts prejudicial to the maintenance of public order and as such, their services were liable to be terminated. The workmen filed their show cause but the disciplinary authority was not satisfied with the same and their services were terminated. They filed an appeal and the order of the disciplinary authority was confirmed and the appeal dismissed. The workmen filed two writ petitions in the Calcutta High Court. The two writ petitions were heard by two single Judges and both were dismissed. However, they succeeded in appeal before Division Bench. That was challenged by the Dock Labour Board before the Supreme Court. The Supreme Court held as follows (pp 116-117):
"A citizen may suffer loss of liberty if he is detained validly under the Act; even so, does it follow that the detention order which deprived the citizen of his liberty should also serve indirectly but effectively the purpose of depriving the said citizen of his livelihood? If the view taken by the appellant's officers who tried the diciplinary proceedings is accepted, it would follow that if a citizen is detained and his detention is confirmed by the State Government, his services would be terminated merely and solely by reason of such detention. In our opinion, such a position is obviously and demonstrably inconsistent with elementary concept of the rule of law on which our Constitution is founded.
XX XX XX XX We are, therefore, satisfied that the Court of Appeal was right in taking the view that in a departmental enquiry which the appellant held against the respondents it was not open to the appellant to act on suspicion, and in as much as the appellant's decision is clearly based upon the detention orders and nothing else, there can be little doubt that, in substance, the said conclusion is based on suspicion and nothing more."
13. From the judgment of second Dock Labour Board case (1973-II-LLJ-254). it appears that the workmen were arrested and detained under the Defence of India Rules. While in detention, their names were removed from the register of the Registered Dock Workers for which they were not entitled to reemployment. After their release from detention, they applied for being allowed to resume duty but they were not permitted to do so. It was held by the Supreme Court that (pp. 257-258):
"In the present case the workmen did not have any opportunity for explaining why their services should not be terminated. Their names were discharged from the list or register which meant their removal from service while they were in detention on the ground that they were being detained under the Defence of India Rules."
Applying the law laid down by the Supreme Court in the first Dock Labour Board (1965-II-LLJ 112) it upheld the order of the Tribunal which had given direction in favour of the workmen.
14. It will be noticed from the Supreme Court cases noticed above that in all the cases, the workmen were arrested and detained under the preventive detention law and the services of all the workmen so detained were terminated. In four cases, there was no charge sheet, no departmental enquiry and in one there was.
15. Mr. Sinha submitted that the law laid down in the two cases of Burn and Co. (supra) and of Indian Iron (supra) should be followed and not the other two cases relied upon by Mr. Dash as the first three cases have not been noticed in the latter two cases. Mr. Dash urged that the latest pronouncement of the Supreme Court being the judgment reported in (1973-II-LLJ-254) it should be followed.
16. In the present case, there is no question of following or not following the latest Supreme Court decision or following the earlier cases as the same not noticed in the latter cases. The facts of each case shall have to be seen to decide which decision was applicable to the present case. The facts of Burn & Co. (supra) and Indian Iron (supra) were different from the facts of Dock Workers Board, (supra). In the first three cases, the ground of terminating the services of the workmen who were arrested and detained under the preventive detention law was their continued absence without any leave or permission and in the second two cases the ground for terminating the services was their detention under the preventive detention law. It will thus be noticed that in the second two cases, the services of the workmen were not terminated because of their continued absence without leave or permission. In Burn & Co (supra) and Indian Iron (supra), it was required to be decided whether the employer could terminate the services of the workman on the ground of his continued absence without leave or permission in terms of the Standing Orders without holding domestic enquiry. Those cases were not relevant for deciding the cases of Dock Labour Board where the question was whether the ground of detention under the preventive detention law could be the basis of terminating the services of the workmen. It may be noticed that in Indian Iron (supra) Supreme Court observed that if workman is arrested at the instance of the employer for the purpose of victimisation and in order to get rid of him on the ostensible pretext of continued absence, the position will be different.
17. In the present case, the services of respondent No. 2 was terminated on the ground of his absence without leave or permission and not on the ground of his detention by the police in a murder case. Continuous absence without permission or leave is a misconduct and the petitioner could have proceeded against respondent No. 2 on this ground. The law laid down by the Supreme Court in Burn & Co. and Indian Iron shall, therefore, apply to the facts of this case and not the law laid down in Dock Labour Board. (supra)
18. The law laid down by the Supreme Court in Burn & Co. (supra) and Indian Iron (supra) applies squarely to the facts of this case. Following those cases, it is held that even if no formal charge was delivered to respondent No. 2, his discharge from service could not have been held to be bad in law. The award of respondent No. 1 as contained in Annexure-12 cannot be sustained.
19. In the result, the application is allowed and the award as contained in Annexure-12 is quashed. In the circumstances of the case, there shall be no order as to costs.