Orissa High Court
Santosh Kumar Samal vs Tata Iron And Steel Co. Ltd. And Ors. on 7 May, 2004
Equivalent citations: (2005)ILLJ43ORI
Author: L. Mohapatra
Bench: L. Mohapatra
ORDER L. Mohapatra, J.
1. The petitioner in this writ application challenges the legality of the orders passed by the learned Presiding Officer, Industrial Tribunal, Rourkela on December 13, 2000 in Annexure-10 and the order passed by the learned Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar dated September 3, 2001 in Annexure-11.
2. Case of the petitioner is that he was appointed as Pharmacist in Bameibari Manganese Mines of Tata Iron and Steel Company Limited (TISCO) on December 23, 1983. On April 28, 1993 the Executive Officer, Joda Municipality lodged an F.I.R. before the Joda Police Station implicating the petitioner and alleging therein that the petitioner was one of the group of 30 persons who were protesting before the authority of the Joda Municipality for eviction of shop owners of vegetable market at Joda. Said F.I.R. was registered as G.R. Case No. 85 of 1993 in the Court of the learned J.M.F.C., Barbil. On May 14, 1993 the Executive Director, TISCO requesting for suitable action to be taken against the petitioner. and another for such alleged conduct. On the basis of the said letter, a preliminary enquiry was conducted behind the back of the petitioner and on the basis of such preliminary enquiry, a charge-sheet was served on the petitioner on July 30, 1993 to show-cause within 96 hours as to why disciplinary action shall not be taken against him for the act alleged in the chargesheet which amounts to misconduct within the meaning of Standing Order No. 34. The charges are as follows:
"On April 28, 1993 you were supposed to be on duty during 8 A.M. to 12 Noon and from 4 P.M. to 6 P.M. You have neither reported for your duty at 8 A.M. nor did you send any information regarding your absence from duty.
It was reported that although you were not on your duty on that date, you falsely managed to obtain your attendance for that date by signing the attendance register.
Your above act amounts to dishonesty in connection with companies business is a misconduct as per the provisions of the certified standing orders as applicable to you".
The petitioner after receipt of the said charge sheet submitted explanation on August 3, 1993 explaining therein that he was very much present in the office on April 28, 1993 and has performed his duty like all other days and the allegations made in the charge-sheet are false. The explanation was not accepted by the opposite parties and a domestic enquiry was conducted against the petitioner. One Prasanna Kumar Sahu, Deputy Manager (Personnel, was appointed as Enquiry Officer to hold the enquiry in the office of the Senior Officer (Personnel), Bameibari Manganese Mines, Bameibari on August 27, 1993 and the petitioner attended the enquiry. One Pitambar Mohanty, a Labour Union Leader, was allowed to assist the petitioner in the domestic enquiry. Thereafter, the enquiry continued from day to day and on completion of enquiry the petitioner was served with dismissal letter dated February 26, 1994 wherein it was mentioned that the said order would take effect from March 1, 1994.
3. After such order was passed, the petitioner submitted an application for reconciliation of the matter and it ended in failure. After submission of the failure report, the Central Government vide order dated March 2, 1995 referred the dispute to the Industrial Tribunal, Bhubaneswar for adjudication and the reference is as follows:
"Whether the action of the management of Mines Division, Tata Iron and Steel Company Limited, P.O. Nuamundi, P.S. Keonjhar in dismissing Sri S.K. Samal, Pharmacist with effect from March 1, 1994 is justified. If not, to what relief the workman is entitled".
While the matter stood thus, the petitioner was acquitted from the G.R. Case holding that the prosecution failed to prove that the petitioner was among the 30 persons who entered inside the office room of the Executive Officer, Joda Municipality on April 28, 1993. After the matter was referred to the Industrial Tribunal, Rourkela the petitioner submitted written statement on May 16, 1996 and following four issues were framed for adjudication.
(1) Whether the action of the management in dismissing Sri Santosh Kumar Samal, Pharmacist with effect from March 1, 1994 is justified?
(2) If not, to what relief the workman is entitled ?
(3) Whether the reference is maintainable?
(4) Whether the domestic enquiry is fair and proper?
The Presiding Officer, Industrial Tribunal, Rourkela vide order dated June 9, 1999 decided to hear Issue No. 4. as preliminary issue. Challenging the said order the petitioner approached this Court in OJC No. 9239 of 1999 and the said writ application was disposed of with the following direction:
"This is a reference of 1997. The Tribunal. is directed to decide the preliminary issue No. 4 within a period of one month from the date of communication of this order. If the Tribunal is required to proceed further to consider other issues, it will dispose of the entire proceeding within a period of two months from the date of decision of the aforesaid issue No. 4."
4. In the meantime, the Government of. India issued a Notification dated July 6, 2000 for adjudication of the Industrial Disputes relating to Central Government Spare Cases by the newly created Central Government Industrial Tribunal, Bhubaneswar (C.G.I.T.) and a request letter was sent to the Presiding Officer, Industrial Tribunal, Rourkela to send the case records to C.G.I.T., Bhubaneswar. However, the records were not sent and the Presiding Officer, Industrial Tribunal, Rourkela though had no jurisdiction over the matter after establishment of C. G. I. T., decided the issue No. 4 by order dated December 13, 2000 (Annexure-10) against the petitioner holding the domestic enquiry to be fair and proper. After such orders were passed, the case records were sent to the C.G.I.T., Bhubaneswar. After the matter was transferred to the C.G.I.T., Bhubaneswar the petitioner again filed an application to recall the order( dated December 13, 2000 passed by the Presiding Officer, Industrial Tribunal, Rourkela, but the said application was rejected on September 3, 2001 in Annexure-11. Challenging the above two orders dated, December 13, 2000 and September 3, 2001 passed by the Presiding Officer, Industrial Tribunal, Rourkela as well as the Presiding Officer, C.G.I.T., Bhubaneswar respectively, the writ application has been filed before this Court.
5. Sri B. Rourtray, learned counsel appearing for the petitioner challenged the impugned orders on the ground that on November 11, 1993 in course of domestic enquiry a request was made to the Enquiry Officer to adjourn the case on the ground of illness of the petitioner. Said prayer was allowed and the enquiry was adjourned till further notice. A notice was issued to the petitioner on November 15, 1993 in his office address intimating that the enquiry is fixed to December 21, 1993. On December 21, 1993 though the petitioner was present for some reasons the Enquiry Officer could not remain present and orders were passed in the file adjourning the enquiry to the next day i.e. on December 22, 1993 with further direction to issue wireless message to that effect to the parties. It is contended that though the petitioner was present on December 21, 1993 there was no intimation of posting the enquiry to the next day and no wireless message was also communicated to him as a result of which he remained completely in dark about the next date of the enquiry. In view of the above, when the enquiry was taken on December 22, 1993 the petitioner was not present and the enquiry was adjourned to January 10, 1994 with direction to issue notice to the petitioner by registered post with A.D. as well as through Peon Book. Shri Rourtray, learned counsel for the petitioner submitted that no notice was received either through registered post or through Peon Book about appearance before the Enquiry Officer on January 10, 1994. However, on the basis of the statement made by the Management representative that the petitioner refused to receive notice through Peon Book, the Enquiry Officer set the petitioner ex parte and after examining Dr. B. K. Mishra, closed the enquiry on the very same day. According to Sri Rourtray, the petitioner having not been given opportunity of hearing in the domestic enquiry, it cannot be said that the domestic enquiry was fair and proper and accordingly the orders passed by both the authorities as mentioned above in Annexures 10 and 11 are liable to be set aside.
6. Shri Ashok Parija, learned senior counsel appearing for the opposite party No. 1, on the other hand, supported the orders passed in Annexures 10 and 11. Referring to the domestic enquiry records it was submitted by Sri Parija that the petitioner had been given adequate opportunity to defend himself in the domestic enquiry and in spite of service of notice he did not appear before the Enquiry Officer on January 10, 1994. However, his representative was present during such enquiry. In view of such materials available in the domestic enquiry record under no stretch of imagination it can be accepted that the petitioner had no knowledge of posting of domestic enquiry to January 10, 1994, otherwise his representative could not remain present during enquiry. Apart from the above, learned counsel for the opposite party No. 1 further submitted that since representative of the petitioner was present on January 10, 1994, deliberate non- appearance of the petitioner on that date will not be a ground to say that the enquiry was not fair and proper.
7. In order to appreciate the contention of the learned counsel appearing for both sides, this Court directed the learned counsel for the opposite party No. 1 to produce the domestic enquiry records and accordingly the records were produced. It is alleged by Sri B. Rourtray, learned counsel for the petitioner that posting of the domestic enquiry to January 10, 1994 was not known to the petitioner and he had not been served with any notice either through registered post or through Peon Book indicating posting of the case to January 10, 1994. It is further submitted by the learned counsel for the petitioner that on January 10, 1994 witnesses were examined and the domestic enquiry was closed, as a result of which the petitioner could not get an opportunity of cross-examining the witnesses examined on the said date. In this connection, it is relevant to refer to some of the orders passed prior to January 10, 1994 which would indicate as to whether the petitioner had been granted reasonable opportunity of hearing or not. The petitioner by application dated August 27, 1993 had requested the Enquiry Officer to allow a co-worker namely Sri P. Mohanty to assist him during enquiry and the said prayer was allowed. From the order sheet maintained by the Enquiry Officer it appears that on October 5, 1993 the petitioner was present and was allowed to examine documents filed on behalf of the management. On the said date the petitioner mentioned that due to conjunctivitis, he is unable to take much strain on the eyes and the Enquiry was adjourned to October 15, 1993. On October 15, 1993 the co-worker Sri P. Mohanty was present but the petitioner got injury in his leg and was unable to attend enquiry, as a result of which the enquiry was adjourned to November 2, 1993. On November 2, 1993 though the petitioner was present he expressed that he has been granted leave from November 3, 1993 to November 6, 1993 as a result of which the enquiry was again adjourned to November 8, 1993. On November 8, 1993 though Sri P. Mohanty, co-worker was present the petitioner did not turn up till 11 A.M. and the enquiry was again adjourned to November 11, 1993. On November 11, 1993 again time was sought for by the petitioner on the ground of health and the enquiry was adjourned to December 21, 1993. On December 21, 1993 the Enquiry Officer could not hold the enquiry and posted the case to December 22, 1993. On December 22, 1993 the petitioner did not appear nor his co-worker appeared and there was also no intimation from the petitioner for adjournment. From the order dated December 22, 1993 it appears that notice was sent to the residential accommodation allotted to the petitioner and it further appears that the same was acknowledged by one Swapna Kumari Samal which was received back on December 20, 1993. However, the petitioner did not appear on that date and in spite of the objection raised on behalf of the management, the Enquiry Officer again adjourned the enquiry for giving an opportunity of hearing to the petitioner. It was further directed in the said order that notice be sent through registered post with A.D. as well as through Peon Book and the case was adjourned to January 10, 1994. On January 10, 1994 though Sri P. Mohanty, co-worker of the petitioner was present, the petitioner remained absent and the Peon Book indicates that notice had been served on the petitioner intimating posting of the domestic enquiry to January 10, 1994. It further appears that the Enquiry Officer did not think it necessary to give further opportunity to the petitioner and examined one witness from the side of the management and closed the domestic enquiry. From the order sheet it is clear that the petitioner was absenting in the domestic enquiry on some ground or other and several adjournments were granted by the Enquiry Officer giving opportunity of hearing to the petitioner. However, the petitioner appears to have failed to avail the opportunity and therefore cannot make a grievance that he was not given opportunity of hearing. The petitioner expected the enquiry to continue as long as he wants and from the order-sheet as indicated above, it is clear that the Enquiry Officer had allowed several adjournments to the petitioner and therefore it cannot be said that reasonable opportunity of hearing was not allowed to the petitioner.
8. Apart from the above, though it was not argued by the learned counsel for the petitioner, from the record it appears that the petitioner had intimated the Enquiry Officer to examine witnesses on his behalf in defence. From the enquiry record, it appears that very same witnesses were examined on behalf of the management and were also cross-examined by the petitioner. In view of the finding arrived above, I am of the view that the finding of the Tribunal that the domestic enquiry had been conducted fairly and properly need not be interfered with.
9. I, accordingly, dismiss the writ application and direct the Tribunal to decide the issues if found necessary for consideration.