Jharkhand High Court
Tata Engineering & Locomotive Co. Ltd. vs Presiding Officer, Labour Court And ... on 25 April, 2003
Equivalent citations: [2003(2)JCR634(JHR)], 2004 AIR - JHAR. H. C. R. 529, (2003) 2 JLJR 580 (2003) 2 JCR 634 (JHA), (2003) 2 JCR 634 (JHA)
Author: Tapen Sen
Bench: Tapen Sen
JUDGMENT Tapen Sen, J.
1.Heard Dr. S.N. Jha learned Senior Advocate for the petitioner and Mr. A.K. Sahani for the respondent No. 2.
2. In this writ application the petitioner has prayed for quashing the Award dated 28.9.1996 (Annexure-14) which was pronounced on 11.11.1996 by the Presiding Officer, Labour Court, Jamshedpur in Reference Case No. 2/92 whereby and whereunder he held that the termination/ discharge of the concerned workman was not justified and accordingly, awarded reinstatement with full back wages and other benefits together with continuity in service. The petitioner has also prayed for quashing the order dated 3.6.1995 (Annexure-11) passed by the said Labour Court holding that the domestic enquiry conducted against the concerned workman was neither justified nor in accordance with the principles of natural Justice.
3. The short facts which are necessary to be taken note of for purposes of adjudication of this case is that the concerned workman was appointed in M/s. Tata Engineering and Locomotive Company Limited (hereinafter referred to for the sake of brevity as the Management) on 1.1.1980 and had been working since then. According to the Management, the concerned workman started absenting himself from duty without any leave, permission or information on and from 11.4.1988. According to the concerned workman he was arrested on 11.4.1988 in connection with G.R. Case No. 502 of 1988 and was remanded to jail custody. He had first orally informed the company which was followed by letters for sanction of leave. Thereafter, he again wrote for extension of leave and on 6.5.1988, leave was granted up to the forenoon of 6.5.1988. Subsequently, on 6.6.1988, the leave was extended but on 25.6.1988 a charge-sheet was issued to the workman through the Jail Superintendent under Standing Order No. 24 (xxxviii) read with 43 asking him to explain about his absence and/or "overstay". According to the Management, the concerned workman should have submitted his written submission and should also have appeared in the enquiry in the office of the Senior Personnel Officer (Foundry) on 6.7.1988. He was also informed through the charge-sheet that Sarvasree Rajiv Verma, Senior Personnel Officer (Foundry) and R.N. Thakur, Assistant Manager (RATP) had been appointed as Enquiry Officer. These letters including the charge- sheet are Annexure-1 to 3 of the Writ Application, Upon receiving the aforementioned charge-sheet and the letters referred to above, the concerned workman sent a letter dated 2.7.1988 (Annexure-4)addressed to the Assistant Manager, Melting Shop, Foundry Division through the Jail Superintendent Informing him as follows :--
"With due respect I have to state that I received your charge-sheet and come to know the facts that the bail petition is filed by my advocate at Ranchi Hon'ble High Court. I am still in jail custody. Hence, I am not in a position to resume my duty at company till I getreleased order from the Court.
Therefore, I request that kindly par don me for the absence of duty till my release. [quoted verbatim]
4. The Management have stated at paragraph-7 (d) of the writ application that in order to provide one more opportunity, they postponed the enquiry to 9.8.1989 as is apparent from the letter dated 20.7.1988 as contained at Annexure-5. By reason of the said letter, the petitioner was requested to appear on the said day i.e. 9.8.1988 at 9.00 a.m. in the office of the Enquiry Officer failing which it was informed that enquiry would be conducted ex parte and that no further extension would be granted. The petitioner again did not appear on 9.8.1988 whereafter, according to the Management, a lenient view was again taken and one more opportunity was given by letter dated 18.8.1988 (Annexure-6) by which the concerned workman was informed that upon his failure to appear on 9.8.1988, a decision had been taken to provide yet another opportunity and accordingly, the enquiry had been postponed to 2,9.1988 at 9.00 a.m. The petitioner was requested to appear. The respondents also published the contents of the charge-sheet in a local Hindi daily namely 'Uditwani' on 23.8.1988 although the earlier letter dated 18.8.1988 (An-nexure~6) was sent to the petitioner at his Jail address.
5. It is relevant to mention that even the notice which was published in Uditwani' a photocopy whereof has been marked Annexure-7 also describes the petitioner as 'under trial prisoner, C/o. Superintendent, District Jail, Jamshedpur'.
6. The Management have stated that inspite thereof the concerned workman neither sent any intimation nor turned up for enquiry which was therefore conducted ex parte on 2.9.1988. According to the Management, although ample opportunity was given to the concerned workman to participate in the enquiry, he did not do so and the enquiry officer ultimately conducted the enquiry and submitted a report finding the concerned workman guilty of the charges levelled against him. At the risk of repetition, the charge leveled against the petitioner was mentioned in the charge-sheet at Annexure-3 and it reads as follows :--
"As per request made by you vide your Prisoner's Petition dated 22.4.1988 from the District Jail, Jamshedpur, you were granted leave from 11.4.1998 to forenoon of 6.5.1988 and while informing you about granting of leave from 11.4.1988 to forenoon of 6.5.1988 you were informed that absence beyond 6.5.1988 will be treated as overstaying unauthorisedly and you will make yourself liable for disciplinary action. You were again informed vide letter No. EST/FD/79225/583 dated 6.6.1988 from Divisional Personnel Officer, Foundry, that your absence from duty from the second half of 6.5.1988 was without authority or leave and that you report for duty within 15 days from the date of issue of that letter. Inspite of that you are overstaying your sanctioned leave from second half of 6.5.1988 without information, authority or leave."
7. By reason of the aforementioned charge-sheet the petitioner was informed that he had committed misconduct under Standing Order No. 24 (xxxviii) read with 43. In the charge-sheet the said orders have been quoted and It reads as follows :--
"An employee who remains absent in excess of the period of leave originally sanctioned or subsequently extended shall be liable to disciplinary action unless he is able to explain his overstay in a manner satisfactory to his departmental head. Breach of this order shall be misconduct under Order 24 and the employee shall be liable to punishment in accordance with these orders."
8. Upon receipt of the enquiry report and upon careful consideration of the papers of the proceedings, the report and the findings, the Management agreed that the concerned workman had been found guilty of the charges which warranted punishment and accordingly his services were terminated by discharging him.
9. According to the Management, and as stated at Paragraphs 8(a) and 8(b), the concerned workman was taken into custody on 11.4.1988 in connection with Sitaram Dera P.S. Case No. 13, dated 10.4.1988 corresponding to G.R. Case No. 502-A/88 under Section 302 for the murder of his own widowed sister, Shyam Sundari. They have further stated that the Memo of Evidence, dated 12.4.1988 sent by the police to i the Court showed that the concerned workman had confessed his guilt and on his pointing, the weapon of murder i.e. blood-stained dagger was recovered. They have also stated that the prayer for bail was not allowed even by the High Court and he was committed to the Court of Session on 12.5.1989 which gave rise to Sessions Trial No. 271/89. However, the informant of the case namely one S.N. Upadhyay who was the lone eye-witness did not support the prosecution. On 18.11.1989 the concerned workman was released on bail and on 24.3.1990 he was acquitted. According to the Management, the acquittal was after examination of only one witness namely the aforementioned S.N. Upadhyay and the order of acquittal was passed without examining either the Investigating Officer or the Medical Officer.
10. After being released from Jail, the concerned workman filed an application for reinstatement vide his letter dated 16.2.1990 and this gave rise to an industrial dispute which finally culminated in a reference being made by the State Government vide Notification dated 31.12.1991 (Annexure-8) to the Labour Court, Jamshedpur to adjudicate as to "whether termination of services of Shri Lachman Pandey Ticket No. 4440/79225/2 is justified? If not, whether he is entitled to reinstatement or/and any other relief?"
The aforementioned reference was then registered as Reference Case No. 2/92 whereafter, written statements both on behalf of the Management and the concerned workman were filed. However, before filing of the written statement on 30.6.1993, the concerned workman had never raised any objection with regard to the authority of the persons in issuing the charge-sheet and passing the order of discharge and such objection was taken for the first time by him in his written statement. However, the concerned workman suppressed the fact that his leave had been granted by the Assistant Manager and the same person had issued the charge-sheet and appointed the enquiry officer. According to the Management, the concerned workman also suppressed the fact that the enquiry report had been considered by the General Manager who had recorded his satisfaction and only thereafter the order of discharge had been passed.
12. However, on 3.6.1995 the Labour Court heard the matter on the point of validity of the domestic enquiry and passed an order to the effect that the same was not in accordance with the principles of natural justice. The petitioner has challenged this order also.
13. After passing of the order dated 3.6.1995, the matter was heard on merits and according to the petitioner, the concerned workman had himself admitted that after 22.4.1988 he had not filed any other leave application.
14. Finally, an Award was made on 28.9.1996 which was pronounced on 11.11.1996 and which has been impugned in this writ application.
15. Dr. Sadanand Jha, learned Senior Advocate appearing for the petitioner has submitted that in paragraphs 8(a) and 8(b) of the writ application it has been clearly stated that the concerned workman was taken into custody in a case under Section 302, IPC for the murder of his own widowed sister and that the memo of evidence dated 12.4.1988 sent by the police to the Court showed that he had confessed his guilt and that on his pointing out the weapon, the blood stained dagger had been recovered whereafter he was not granted bail by the High Court and the case was ultimately committed to the Court of Sessions. Dr. Sadanand Jha has drawn attention of this Court to paragraph 13 of the counter affidavit filed by the concerned workman and has submitted that in reply to paragraph 8(a), the workman has merely stated that the "averments made therein are not wholly correct and are hereby denied, which will be evident from the fact that the workman was acquitted from the criminal case." Thus, what Mr. Jha submits is that the facts stated by the concerned workman in relation to admission of guilt and the recovery of the blood stained dagger have not been denied. According to him, such a person should not be given any relief.
16. The aforementioned submission of Dr. Sadanand Jha is however not accepted by this Court on account of the fact that if the aforementioned submission is accepted to be correct then it would have the effect of upsetting a Judgment of a competent Court of criminal jurisdiction. The other submissions is to the effect that there was no violation of the principles of natural justice on account of the fact that the concerned workman had notice of the charge-sheet and of the different dates of the holding of the inquiry but inspite thereof, he opted not to appear. For such deliberate non appearance, the rules of natural justice should not be stretched too far.
17. The above submission of Dr. Jha is also rejected on account of the fact that each one of the letters/notices sent by the Management to the concerned workman including the letters/notices dated 6.5.1988 (Annexure-1), 6.6.1988 (Annexure-2), 20.7.1988 (Annexure-5) and 18.8.1988 (Annexure-6) were all sent to the concerned workman describing him either as "under trial prisoner" or "C/o. Superintendent, District Jail, Jamshedpur," Moreover, even the charge-sheet (Annexure-3) was also similarly addressed and so was the notice that was published in Uditwani (Annexure-7).
18. These documents all go to show that the Management was fully aware of the fact that the concerned workman, during the relevant time was interned in Jail who had no means to come out till he was released. For such an act, the Management should not have galloped ahead with an ex parte hearing knowing fully well about the workman's predicament. In fact, no sooner had the concerned workman received the charge-sheet, he had immediately informed the Management by his letter dated 2.7.1988 (Annexure-4) that he was in Jail and therefore he begged pardon for his absence till release. In that view of the matter, it cannot be held that there was a deliberate intention on the part of the concerned workman to avoid the enquiry or overstay the sanctioned leave. The situation was beyond his control. That being the position, the argument to the effect that there was no application for extension of leave after 22.4.1988 is totally misconceived.
19. Additionally, paragraphs-12 and 13 of the Award is important to be taken note of because it establishes diligence and promptitude on the part of the concerned workman. In the said paragraph the Labour Court has observed as follows :--
"12. Order 43 of the Works Standing Order says :--
"an employee who remains absent in excess of the period of leave originally sanctioned or subsequently extended shall be liable to disciplinary action unless he is able to explain his overstay in a manner satisfactory to his departmental head. Breach of this order shall be misconduct under Order 84 and the employee shall be liable to punishment in accordance with these Orders.
13. From the facts and circumstances and evidences available oral and documentary on record, it is as crystal as clear that the management was fully aware that the workman had been arrested and was lodged in District Jail, Sakchi. Charge- sheet in question was sent to the workman at his Jail address by the Management. Ext. W/1. W/1(a) and Ext. 11/02 as well as Ext. W (the explanation of the workman dated 2.7.1988) all go to prove that the reply on the part of the workman was reasonable and as such the Management through its concerned head of the department, would have considered the same positively taking the explanation of the workman as to be satisfactorily. Specially, at least after clean acquittal of the workman from the Court of Law subsequent to his release thereof. No doubt, the workman was discharged from the service of the company with effect from 30.11.1998 on the basis of the aforesaid domestic inquiry which was not fair and in accordance with the principles of natural justice. The workman had been trying to satisfy the Management by his above referred letter from Jail on one hand and he was facing the trial on the other hand in the Court of Law. The moment he came out of Jail custody on release on 18.11.1989 i.e. after about one year of the said discharge from the service, he promptly requested for his reinstatement in service but the same was turned down by the Management in April, 1990 (Ext. W-3) and the same necessitated an Industrial Dispute followed by Conciliation Proceeding, which was finally failed and then the dispute was referred to the Court for adjudication."
20. For all reasons stated above therefore, this Court holds that there is neither any perversity in the Award nor can it be said to be mala fide. This Court while exercising jurisdiction under Article 226 should not upset findings of fact.
Consequently, this Court holds that there is no merit in this writ application. It is accordingly dismissed. There shall, however be no order as to costs.