Jharkhand High Court
Rameshwar vs Presiding Officer And Anr. on 3 April, 2003
Equivalent citations: [2003(3)JCR345(JHR)]
Author: Tapen Sen
Bench: Tapen Sen
JUDGMENT Tapen Sen, J.
1. Heard Mr. Delip Jerath, learned counsel for the petitioner and Mr. Krishna Bahadue Sinha Sr. Advocate assisted by Mr. S. Piprawal and Mr. Amitabh for the respondent No. 2 Mr. Sarvendra Kumar represents the respondent No. 1, which is formal party.
2. The petitioner, who is the concerned workman has prayed for quashing a portion of the Award passed by the Respondent No. 1 on 4.11.1995 in Reference Case No. 11 of 1989 whereby and whereunder he has disallowed back wages to him. The petitioner joined the services of the respondent No. 2 Company as Mason on 18.9.1994 in the Refractories Maintenance Department. On 13.7.1985, he was served with a charge-sheet (Annexure-1) by which the petitioner was asked to show cause as to why disciplinary action be not taken against him for having committed the following misconduct.
"It has been reported that you have encroached upon Company's vacant land measuring 1900 sq. ft. approx near Vivekanand School, Bhuyadih within R.S. Plot No. 2244 of Mouza Sakchi and have unauhorisedly built a room thereon with bricks and tiled roof. The above act of your amounts to misconduct within the meaning of order No. 23 of our Works Standing Orders."
3. Neither of the parties produced the copy of the Works Standing Orders for perusal of this Court but paragraph 19 of the Award and paragraph 5 of the Counter affidavit clearly point to its basic contents and upon reading these two paragraphs, it is evident that as per Clause 23, theft, fraud or dishonesty in connection with the business of the Company or its property or the unauthorized use of the Company's property have been specifically mentioned as some of the misconducts within the meaning of the Standing Orders of the said Company.
4. Having been served with the aforementioned charge-sheet, the petitioner asserts that he, on his part, submitted his reply on 20.7.1985 wherein he stated that the allegations brought against him are absolutely false and that the land in question did not belong to him and that he was also in no way concerned with the said piece of land. He also stated that he had not built any structures thereon.
5. According to the petitioner, his reply was not considered and a domestic enquiry was conducted by an incompetent authority. He has also submitted that the domestic enquiry was conducted against the principles of natural justice and the workman was not allowed to defend himself properly. After the enquiry was over, the Enquiry Officer submitted a report whereafter the proposed punishment of dismissal was issued to the petitioner.
6. The Management (Respondent No. 2) on the other hand, contested the case and categorically pleaded that the petitioner had illegally encroached upon a piece of vacant land measuring 1900 sq. st. forming part of R.S. Plot No. 2244 of Mouja Sakchi belonging to the Company. They have further pleaded that the petitioner/workman continued with his illegal possession and constructed rooms after setting up brick walls and tiled roofs and thereafter started using the land as khatal thereby causing immense difficulties to the people of the locality.
7. Accordingly, complaints were received from the people of the locality whereafter they had to initiate action against the petitioner. According to the Company, the domestic enquiry was conducted properly and the workman was allowed proper opportunities to defend himself. He participated on seme dates, and on 28.7.1986 although he was present yet he refused to participate in the enquiry and left the place as a result of which the rest of the enquiry had to be conducted ex-parte. Mr. Delip Jerath, learned counsel for the petitioner, has very vehemently submitted that the specific case of he petitioner was that he had nothing to do with the land in question and that when he had specifically asserted this in his reply and also that he had not built any structure thereupon, the Company could very well have taken possession of the same. Having not done so, the Company cannot take recourse to the departmental proceedings as against the petitioner thereby attempting to overlook their own lapses. Mr. Delip Jerath has further submitted that the Presiding Officer, Labour Court, Jamshedpur (respondent No. 1) committed an illegality by not considering the defence of the petitioner in its proper perspective and merely granted reinstatement whereas, in effect, the petitioner was entitled to back wages also. The argument of Mr. Delip Jerath, learned counsel for the petitioner does not find support with this Court basically for three reasons; firstly, because of the specific findings which will be dealt with later on which are admittedly findings of fact which should not be interfered with by a Writ Court; secondly, because the finding of misconduct is established as will be dealt with hereinafter and thirdly, because the Labour Court after having dealt with the different issues and evidences, came to a conclusion on the preliminary issue that the domestic enquiry was fair and proper and that the concerned workman (Petitioner) had been given sufficient opportunities to defend himself.
8. The findings of fact which are referred to above are at paragraphs 23 and 24 (infra). These two findings are important to be taken note of and they are :--
A. The charges of misconduct as alleged against the workman has been established."
B. "It should also be kept in mind that the workman is sill in unauthorized possession of the said land and started using it as khatal
9. In the teeth of the aforesaid two specific findings, Mr. Delip Jerath has vehemently contended that the petitioner had never encroached nor was he in unauthorized possession and that he had never used it as a khatal This Court rejects the aforementioned contentions of Mr. Delip Jerath and holds that in an application under Article 226 of the Constitution of India, the Court exercising jurisdiction of judicial review should not interfere with findings of fact except in a case of mala fides or perversity i.e. where there is no evidence to support of finding or where the finding is such that no man acting reasonably and with objectivity would have arrived at that finding.
10. In the instant case the Presiding Officer comes to the aforesaid findings on the basis of cogent evidences which have been referred, to at paragraphs 12, 13, 14, 15, 16 and 18 of the Award itself. In that view of the matter this Court will not embark upon re-appreciating evidence or weighing the same like an Appellate Authority. Reference in this context may be made to the case of Bank of India and Anr. v. Degala Surya Narayan reported in AIR 1999 SC 2407. A similar proposition of law is also to be found in the recent case of the Indian Overseas Bank v. I.O.B. Staff Canteen Workers, Union reported in (2000) 4 SCC 245, wherein the Supreme Court has clearly and specifically barred a 226 Court from re-appreciating evidence in matters relating to pure findings of fact. Following Degala's case (supra), our own High Court in he case of Kashi Nath Sharma v. Presiding Officer, Labour Court, reported in 2002 (1) JLJR 15 : 2001 (3) JCR 661 (Jhr) has also taken the view that a finding of fact conclusively recorded by a Labour Court or a Tribunal cannot be judicially reviewed except in case of mala fides or perversity and that a 226 Court cannot sit as an Appellate Court to re-appreciate evidence. Consequently specific findings of fact having been recorded in the manner stated (supra), i.e. at paragraph 23 and 24 (infra) of the Award, this Court refuses to interfere with the same insofar as the question of fact are concerned.
11. The second finding which is also equally important to be taken note of is the finding to the effect that not only the charge of misconduct was established but also to the effect that the Labour Court, after hearing both the parties and upon consideration of evidences, came to the conclusion at paragraph 6 of the Award that the domestic enquiry was fair and proper and that the petitioner/workman was given opportunities to defend himself. Once the Labour Court came to the conclusion that the domestic enquiry was fair and proper, and also having come to the conclusion that the charge of misconduct had been established, the Labour Court thereafter should not have interfered with the order of punishment.
12. For the aforementioned proposition reference maybe made to the case of New Shorrock Mills v. Maheshbhai T. Rao reported in 1996 LLR 1129. Paragraphs 8 and 9 of the aforementioned Judgment of the Supreme Court is worth reproducing in this case :--
"8. It appears to us that the Labour Court completely misdirected itself in ordering the respondent's reinstatement with forty per cent back wages. The Labour Court was exercising jurisdiction under Section 78 of the Bombay Industrial Relations Act, 1946. It had the jurisdiction, inter alia, to decide the disputes regarding the propriety and legality of an order passed by an employer acting or purporting to act under the standing orders. The Labour Court, in the present case, having come to the conclusion that the finding of the departmental enquiry was legal and proper, respondent's order of discharge was not by way of victimization and that the respondent workman had seriously misbehaved and was thus guilty of misconduct, ought not to have interfered with the punishment which was awarded, in the manner it did. This is not a case where the Court could come to the conclusion that the punishment which was awarded was shockingly disproportionate to the employee's conduct and his past record. The Labour Court completely overlooked the fact that even prior to the incident in question the respondent had misconducted himself on several occasions and had been punished. According to the appellant there were atleast three other instances where the respondent had misconducted himself and that he had failed to improve his conduct despite his assurances from time to time. Another aspect which was overlooked by the Labour Court was that on the finding of the enquiry officer that the respondent had misbehaved with his superior officer and was guilty of misconduct, the appellant could have dismissed the respondent from service. The appellant chose not to as so. Instead it passed an order of discharging the respondent from service. Lesser punishment having been given by the management itself there was, in our opinion, no justifiable reason for the Labour Court to have set aside the punishment so awarded. We are unable to accept that the punishment imposed by the management was in any way disproportionate to warrant interference by the Labour Court. The direction of the Labour Court ordering reinstatement of the respondent with forty per cent back wages was clearly unwarranted.
9. For the aforesaid reasons while allowing his appeal the order dated 22nd June, 1990 of the Labour Court, Nadiad, in so far as the order of reinstatement of the respondent is concerned, is set aside. There will be no order as to costs."
(Emphasis by Court)
13. Thus, upon consideration of the facts this case, it is therefore evident that upon proper appreciation of evidence, the Labour Court did come to a conclusion that misconduct was established; and that the domestic enquiry was fair and proper. He therefore initially correctly came to the conclusion that in the circumstances of the case reinstatement would not be proper but then immediately in the next subsequent sentence he committed a gross error inasmuch as he proceeded to weigh the case and proceeded to consider the grant of compensation in lieu of reinstatement which according to him was proper. However, relying upon a case of O.P. Bhandari reported in AIR 1987 SC 111 : 1987 LIC 25, he took into consideration the guidelines laid down therein and on the basis thereof he observed as follows ;
"In the light of the decision of the Hon'ble Supreme Court compensation equivalent to 3.33 years salary including allowances on the basis of last pay and allowances drawn by the workman would be a reasonable amount to award compensation in lieu of reinstatement taking into account that the corpus if invested at the prevailing rate of interest will yield 50% of the annual salary, he will be getting this amount without work, he can work somewhere else and the corpus of lump sum compensation amount would remain entact in any vent."
14. Again notwithstanding the aforementioned observations, the Labour Court then suddenly proceeded to award reinstatement but without back wages.
15. This Court has already expressed its views based on the case of New Shorrock Mills (supra). Even the Award of reinstatement ought not to have been allowed in this case but taking into consideration the fact that the Award has not been challenged by the management, this Court leaves it at that and for the reasons aforesaid, refuses it to interfere with the Award in any form whatsoever. Consequently, the writ petition is dismissed, the same having no merit at all.