Madhya Pradesh High Court
Dental Francis vs Cadbury India Ltd. on 6 December, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
MISCELLANEOUS PETITION No. 1163 of 2021
DENTAL FRANCIS
Versus
CADBURY INDIA LTD.
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Appearance:
Shri Amit Lahoti - Advocate for the petitioner.
Shri Bhagwan Singh Bais - Advocate for the respondent No.1.
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Reserved on : 19/11/2024
Delivered on : 06/ 12/2024
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This petition having been heard and reserved for orders,
comiing on for pronouncement this day, the Hon'ble Shri Justice
Milind Ramesh Phadke pronounced/passed the following:
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ORDER
The present petition under Article 227 of the Constitution of India is directed against the order dated 02.05.2019 passed by Industrial Court, Gwalior in review application No.6/MPIR/2019, whereby the review application filed against the order dated 28.02.2019 passed by the Industrial Court was dismissed.
2. The petitioner is further aggrieved by the order dated 28.02.2019 passed by Industrial Court in Appeal No.6/MPIR/2014, whereby the appeal preferred by the petitioner against the order dated 2 20.03.2014 passed by the Labour Court was dismissed.
3. The petitioner is further aggrieved by the original order dated 20.03.2014 passed by learned Labour Court No. 2, Gwalior, whereby the application preferred by the petitioner under Section 31, 61 and 62 of the Madhya Pradesh Industrial Relation Act has been dismissed and order of dismissal passed in the domestic enquiry on 04.03.2000 has been affirmed.
4. All the orders have been assailed on the ground that while passing the impugned orders the authorities did not considered the fact that in the domestic enquiry no opportunity of hearing was granted to the petitioner and the said domestic enquiry conducted behind the back of the petitioner was held to be illegal vide order dated 02.06.2010 by the Labour Court itself and since the said order was not agitated any further, had attained finality; more over no record was produced by the respondents before the Labour Court showing the unauthorised absence of the petitioner despite there being an order passed in this regard by the learned labour Court, thus, instead of drawing adverse infrance against the respondents and holding rentrenchment of the petitioner to be illegal, had dismissed the reference, which is bad in law.
5. Short facts leading to the controversy are that the petitioner was 3 appointed as Technical Operator in the year 1993 in the respondent/establishment. In the year 1999 for some days the petitioner could not join his duties on account of illness and in that regard due applications alongwith the medical certificates were submitted by the petitioner in the establishment, however, ignoring the aforesaid in a malafide manner an order of dismissal of service was issued against him on 04.03.2000. Challenging the aforesaid order of termination, the petitioner had preferred an application u/S 31, 61 and 62 of MPIR Act and in the said application the petitioner submitted that in the domestic enquiry, the Enquiry Officer has not given any information, copy of the charge-sheet was also not given and though the petitioner had submitted leave applications alongwith the medical certificates for his alleged absence, in a wrongful manner the said absence was held to be unauthorised. In the said enquiry, no opportunity was granted to the petitioner to lead evidence and on 15.12.1999 when the petitioner moved an application/representation through a legal practitioner to defend him, but the said application/representation was not taken on record and no subsequent dates were given to the petitioner with regard to the enquiry and thereafter the final order was passed and the petitioner was removed from service and looking to the alleged misconduct of the petitioner the punishment was highly disproportionate, thus, it was prayed by the 4 petitioner that the order of dismissal of service dated 04.03.2000 be set aside.
6. The respondent/establishment submitted its reply, wherein it was averred that the domestic enquiry was held in accordance with law and proper procedure and adequate opportunity of hearing was given to the petitioner to defend his case but since the petitioner himself didn't participate in the enquiry, therefore, he was proceeded ex-parte. It was further averred therein that charge sheet was issued to the petitioner by registered post and on 04.11.2019 the petitioner had refused to receive the memo of charge sheet and as the petitioner himself was responsible for his being proceeded ex-parte, cannot be said that domestic enquiry was illegal.
7. On the basis of pleadings of the parties learned Labour Court framed the necessary issues including the issue as to whether the domestic enquiry was illegal and invalid or not. Vide order dated 02.06.2010 the issue of validity or otherwise of the domestic enquiry was decided as a preliminary issue and was decided in favour of petitioner and it was held that no proper opportunity of hearing was given to him in the domestic enquiry and ultimately it was declared that the enquiry was illegal and invalid. The order dated 02.06.2010 was put to challenge by the respondent/establishment by way of filing 5 an appeal before the industrial Tribunal, wherein vide order dated 22.03.2013 liberty was granted to the respondent/establishment to assail the order dated 02.06.2010 in the final order passed by the labour court and so far as issue No.6, which was with regard to jurisdiction of labour Court to hear the reference, it was held that the labour Court had jurisdiction to try the said case.
8. Thereafter, on the basis of evidence led by both the parties the labour Court upheld the order of dismissal vide order dated 20.03.2014. The aforesaid order was challenged by way of filing an appeal under Section 65 of MPIR Act before the Industrial Court but the said appeal was also dismissed vide order dated 28.02.2019. Again the petitioner to try his luck preferred a review U/s 71 of MPIR Act on the ground that there was an error apparent on the face of record, as the effect of order dated 02.06.2010 passed by labour court, whereby domestic enquiry was held to be bad in law, was not at all considered, but the said review was also dismissed vide order dated 02.05.2019, hence, challenging the aforesaid orders, the present petition has been filed.
9. Learned counsel for the petitioner has vehemently argued that both the Courts have completely ignored the order dated 02.06.2010, whereby issue No.1 regarding validity of domestic enquiry has been 6 decided and it has been held that the domestic enquiry on the basis whereof the petitioner has been dismissed from service was held to be illegal and invalid, as no opportunity of hearing was granted to him and the said enquiry was held to be conducted in an irregular manner showing undue haste but the effect of such finding of the labour Court on the merits of the case has not been considered by both the courts below, thus, the very basis of dismissal from service which was the domestic enquiry and which has been held to be illegal could not have been made the base of dismissal of the petitioner, which renders the orders to be illegal and perverse.
10. It was further submitted that before the labour court, the petitioner has moved an application to seek production of relevant record of the year 1997 to 1999 with respect to the attendance of the petitioner and the leave record and the such application was allowed by the labour court but despite thereof the record was not produced, as according to the respondent herein, the same was destroyed. Thus, the very base on which the dismissal order has been passed, was washed out and was not available with the respondents, the learned labour Court should have allowed the reference but ignoring this vital aspect of the matter, it had dismissed the reference, thus, has committed an illegality in giving the stamp of approval to the order of 7 dismissal of the petitioner.
11. While referring to the statement of the witness of the respondent/establishment Mr. Amit Bhargava, it was argued that in his cross-examination he had admitted that along with the charge-sheet, copy of the leave record was not given and only the description regarding absence has been given and prepared by perusing the muster role from the society, thus, it was very much clear that the record on the basis of which the petitioner was shown to be unauthorizedly absent was not produced before the labour court by the respondent/establishment and thus an adverse inference should have been drawn against the respondent/establishment.
12. It was also argued that the petitioner has been dismissed from service on the basis of the previous record of his unauthorized absence, for which he was already punished with certain penalties and those unauthorized absence, thereafter could not have been taken into consideration while passing the fresh order of dismissal, thus, the order of dismissal suffers from patent illegality, therefore, should have been set aside but as the labour Court as well as Industrial Court did not consider this aspect, both the orders are liable to be set aside. On the basis of aforesaid arguments, it was submitted that the petition deserves to be allowed and impugned orders are liable to be set aside 8 and the petitioner is entitled for his reinstatement alongwith all consequential benefits.
13. On the other hand, learned counsel for the respondents had vehemently opposed the contentions as raised by the counsel for the petitioner. While referring to the judgment of Apex Court in the matter of M/S Kalinga Mining Corporation vs Union Of India & Ors reported in 2013 (5) SCC 252; wherein it was held that when the conclusions of the authority are based on evidence, the same cannot be re-appreciated by the court in exercise of its powers of judicial review, had contended that this Court is not sitting in an appellate jurisdiction over the findings recorded by the learned labour Court confirmed by the Industrial Court and when both Courts below have found the petitioner being habitual absentee, therefore, his termination from service, which was held to be proper cannot be interfered.
14. While referring to the judgment of Apex Court in the matter of Kurukshetra University Vs. Prithvi Singh reported in (2018)4 SCC 483; it was argued that when a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is 9 against the management, but if its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. In the aforesaid regard, it was contended that since finding on the preliminary issue with regard to the validity of the domestic enquiry was against the respondents, the Tribunal gave opportunity to the respondents to cite the additional evidence and as the later evidence adduced by the respondent clearly demonstrated the very conduct of the petitioner being a habitual absentee, the order of termination of the petitioner cannot be said to be bad and it cannot be said that the said order of termination has been upheld only on the basis of the domestic enquiry.
15. Even otherwise, in an appeal before the Industrial Tribunal liberty was granted to the petitioner to assail the order dated 02.06.2010, whereby the validity of the domestic enquiry was held to be invalidated at the time of final hearing, the respondent was well within its jurisdiction to challenge the same and bring material on record, which had brought and which had been made basis for upholding the order of termination, thus, the petition being devoid of any substance is liable to be dismissed.
16. It was further submitted that when the labour Court and Industrial Court both have found the petitioner to be habitual absentee, 10 in the light of Apex Court in the matter of Chairman & Md V.S.P. & Ors vs Goparaju Sri Prabhakara Hari Babu reported in (2008)5 SCC 569; in the matter of M/S. L&T Komatsu Ltd vs N. Udayakumar reported in (2008) 1 SCC 224; his termination cannot be said to be bad in law.
17. While referring to the judgement of the Apex Court in the matter of Delhi Transport Corporation vs Sardar Singh reported in (2004) 7 SCC 574; it was argued that when an employee absents himself from duty, even without sanctioned leave for very long period, it prima facie shows lack of interest in work and para 19(h) of the Standing Order, which relates to habitual negligence of duties and lack of interest in the Authority's work and when by a way of cogent evidence it has been established that the petitioner has remained unauthorizedly absent without sanctioned leave from the authority, it was rightly held that the petitioner was habitually negligent in duties and exhibits lack of interest in the employer's work, thus, the orders impugned herein doesn't suffer from any illegality or perversity.
18. While referring judgement of Apex Court in the matter of Hombe Gowda Education Trust & Anr vs. State Of Karnataka & Ors reported in (2006) 1 SCC 430; it was argued that the recent trend in the decisions of the Apex Court seek to strike a balance between the 11 earlier approach of the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country and in several decisions it had been noticed that how discipline at the workplaces/industrial undertaking received a set back, thus, in view of the change in economic policy of the country, it was held that now it may not be proper to allow the employees to break the discipline with impunity and as our country is governed by rule of law, all actions, therefore, must be taken in accordance with law. Thus, the impugned orders only after analyzing the conduct of the petitioner had held the order of termination to be good, which needs no interference.
19. While harping upon the powers of this Court under Article 226/227 of the Constitution of India learned counsel while placing reliance in the matter of M/S Pepsico India Holding Pvt Ltd vs Krishna Kant Pandey reported in (2015) 4 SCC 270; had argued that since the findings recorded by the labour Court and the Industrial Court prima facie are finding of facts, under the guise of exercising its jurisdiction normally the Court should not interfere in convert itself into a court of appeal. In this regard, learned counsel has also referred the judgement in the matter of Birla Corporation Ltd. vs Rajeshwar Mahato And Ors. reported in (2001)10 SCC 611; and in the matter of 12 Indian Overseas Bank vs I.O.B. Staff Canteen Workers Union & Anr reported in (2000) 4 SCC 245. Likewise, he has also placed reliance in the matter of State of Haryana and another v. Manoj Kumar (2010)4 SCC 350.
20. With regard to the merits of the matter, it was contended that the first charge sheet issued to the petitioner was dated 07.10.1997, which contained a chart, wherein it was reflected that the petitioner remained un-authorisedly absent in the year 1995 for 105.5 days, in the year of 1996 for 94 days and in the year 1997 till September, for 69 days. In the domestic enquiry conducted with regard to the aforesaid charges the petitioner was found to be guilty of charges and vide order dated 19.01.1998 punishment of suspension of 3 days w.e.f. 20.01.1998 to 22.01.998 was imposed upon him.
21. Again a second charge sheet dated 19.01.1998 was served upon the petitioner in which it was alleged that the petitioner remained unauthorizedly absent for 29 days in the month of September,1997, for 28 days in October, 1997, for 14 days in November,1997, for 30 days in December, 1997 and for 18 days in January, 1998 till the issuance of charge sheet. Again in the domestic enquiry conducted with regard to the aforesaid charges the petitioner was found guilty and in pursuance thereof the petitioner was punished with the penalty of 13 withholding his annual increment for a period of one year beginning from April, 1999 and the aforesaid penalty was imposed upon the petitioner with a view that he may improve himself but despite thereof, the petitioner didn't made any efforts to improve himself and again made himself unauthorizedly absent, therefore, third charge sheet dated 22.09.1998 was served upon him, in which it was alleged that the petitioner remained absent for 12 days between the period of 20th January to 31st January 1998 and again remained unauthorizedly absent in the month of March, 1998 for 2 days, in April, 1998 for 27 days, in May,1998 for 30 days, in June, 1998 for 29 days, in July, 1998 for 14 days, in August, 1998 for 22 days and in September 1998 till 22.09.1998 for 22 days. This time the petitioner himself submitted a letter dated 14.04.1998 to the respondent/establishment and assured that he will not remain unauthorizedly absent and he will continue to work regularly and further he wrote that in case if he again remains absent, the company may take any suitable action and the said letter of the petitioner was marked as Exhibit D-46 before labour Court.
22. After the letter of the petitioner the Cadbury workers union also wrote a letter dated 14.12.1998 to the Respondent company and assured that the petitioner now will not remain absent and would be diligent towards his duties and further they assured that in case if the 14 petitioner remains absent unauthorizedly then the respondent company shall be free to take any action against him and as a last opportunity, it was requested that as a last opportunity may grant chance to the petitioner for improvement in the conduct.
23. In mids of aforesaid charge-sheet and the letters, the domestic enquiry was conducted and this time also the petitioner was found guilty but this time vide order dated 08.04.1999 punishment of withholding of increment for one year was imposed upon the petitioner. Even after the aforesaid punishment orders, the petitioner did not improve himself and he continued to remain un-authorizedly absent, which compelled the respondent company to send a letter dated 18.11.1998, letter dated 28.3.1999 and a final warning letter dated by registered A.D. post, but even thereafter the petitioner didn't improvement himself and continued to remain unauthorizedly absent from the duties and again committed gross misconduct by remaining unauthorizedly absent for 132 days from the period from March, 1999 to October, 1999 and, therefore, last charge sheet dated 26.09.1999 was served upon the petitioner. In the said charge sheet it was alleged that the petitioner had remained unauthorizedly absent from duties for 8 days in the month of March, 1999, for 22 days in the month of April, 1999, for 24 days in the month of May, 1999, 26 days in the month of 15 June, 1999, 16 days in the month of July, 1999, for 9 days in the month of August, 1999, 18 days in the month of September, 1999 and for 9 days in the month of October, 1999. This time the charge sheet was not replied by the petitioner despite having received the same, therefore, the domestic enquiry was constituted for enquiry the charges and independent Inquiry Officer was appointed, who after conducting the enquiry submitted the enquiry report and found the petitioner guilty of charge and after issuing a show cause notice to the petitioner, services of the petitioner were terminated vide order dated 04.03.2000.
24. It was further argued that since the labour Court while hearing the application preferred by the petitioner under Section 31,61 and 62 of MPIR Act had found the domestic enquiry to be invalidated vide order dated 02.06.2010, the respondent company apart from the aforesaid enquiry report had laid ample material before the labour Court which alongwith the statement of its witnesses, proved the misconduct committed by the petitioner and on the basis of which learned labour Court had rightly came to a conclusion that the petitioner is a habitual absentee, thus, since the very order passed by the labour Court is based on legal and sound principle of law, no interreference therein is required and in the light of aforesaid 16 discussion and the annunciation the very petition preferred by the petitioner is liable to be dismissed.
25. Heard the counsel for the parties and perused the record.
26. The law with regard to interference with the facts recorded by the Courts or the Tribunal by the High Court while exercising the powers under Article 226 and 227 of the Constitution is very well settled. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. The Apex Court in the matter of Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447, while referring the judgment in the matter of Bathutmal Raichand Oswal v. Laxmibai R. Tarta; has observed that the High Court should not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred it with a right of appeal and, thus, the High Court is not competent to correct errors of facts by examining the evidence and reappreciating it.
27. The Apex Court in the matter of Indian Overseas Bank vs. I.O.B. Staff Canteen Workers' Union and Another (Supra) considered a similar question with regard to the power of the High Court under Article 226 against the findings recorded by the Industrial Tribunal. Reversing the decision of the Single Judge and restoring the 17 fact finding decision of the Tribunal the Apex Court in para 17 has held as under:-
"17. The learned Single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reappreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a tribunal, presided over by a judicial officer. The findings of fact recorded by a fact-finding authority duly [pic]constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ court to warrant those findings, at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned Single Judge and in ordering restoration of the award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned Single Judge and the judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials which constituted ample and sufficient basis for recording its findings, as it did, and the manner of consideration undertaken, the objectivity of approach adopted and reasonableness of findings recorded seem to be unexceptionable. The only course, therefore, open to the writ Judge was to find out the satisfaction or otherwise of the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-finding authority and not embark upon an exercise of reassessing the evidence and arriving at findings of one's own, altogether giving a complete go-by even to the facts specifically found by the Tribunal below."
28. In the aforesaid matter the Apex Court has observed that 18 findings of fact recorded by a fact-finding authority duly constituted for the purpose, ordinarily should be considered to have become final and should not be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ court to warrant those findings, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken.
29. Thus, this Court finds that interference in orders of two facts finding Courts cannot be made lightly and only in cases of grave irregularity or illegality committed in the decision making process that any interreference can be made under the provisions of Article 227, in which the present petition has been filed.
30. The learned counsel for the petitioner could not point out any perversity or illegality in the decision making process except non adherence of principle of natural justice at the time of conducting of departmental enquiry, which the learned labour Court vide order dated 02.06.2010 had already invalidated but with regard to the material evidence produced before the labour Court, counsel for the petitioner could not point out any irregularity committed by the labour Court in considering those material and evidence, thus, with regard to the 19 aspect of interference in the impugned orders this Court finds that there seems to be no ground for interreference in the said orders.
31. As per the guidelines issued by the Apex Court in the matter of Kurukshetra University Vs. Prithvi Singh (Supra) learned labour Court had granted opportunity to the parties to lead their evidences apart from the domestic enquiry, which has been led by the respondent and the previous conduct of the petitioner was also placed on record, which clearly demonstrated that on earlier occasions also the petitioner was penalized either by way of suspension or stoppage of increment for his unauthorized absence, but even after repeated punishments the petitioner did not mend his ways and continued the trail of his unauthorized absence though he as well as the trade union had given assurance that in future he will not commit any or the same mistake. [For reference the undertaking given by the petitioner dated 14.12.1998 (Ex.D/46) and the assurance given by the Worker on the same date (Ex.D/47) respectively be looked into.]
32. Thus, when two facts finding Courts have found that the petitioner was habitual absentee after having found that all the procedure requirements have been complied with, this Court doesn't find any reason to interfere with the quantum of punishment imposed upon the petitioner and no sympathy or sentiments could be shown 20 towards the petitioner.
33. As has been held by the Apex Court in the matter of Delhi Transport Corporation vs Sardar Singh (Supra) that when an employee absents himself from duty, without sanctioned leave for very long period, it prima facie shows his lack of interest in work. The Apex Court further observed that para 19(h) of the Standing Orders relates to habitual negligence of duties and lack of interest in the Authority's work and when an employee absents himself from duty without sanctioned leave, the Authority can on the basis of the record, come to a conclusion about the employee being habitually negligent in duties and exhibiting lack of interest in the employer's work.
34. In the light of aforesaid observations if the facts of the present matter are seen, it may be observed that ample material was produced before the labour Court to demonstrate the unauthorised absence of the petitioner for long periods, which had affected the work of the employer and the petitioner in the aforesaid regard was required at- least to bring some material on record to show as to how his absence was on the basis of sanctioned leave and as to how there was no negligence, as a habitual absence is a factor which establishes lack of interest in work.
35. Lastly, conclusions regarding negligence and lack of interest can 21 be arrived at by looking into the period of absence more particularly when the same is unauthorized and the burden is on the employee, who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of Para 4 of the Standing Order shows the seriousness attached to habitual absence. In clause (i) thereof, there is requirement of prior permission and only exception made is in case of sudden illness. There are also conditions stipulated, non-observance of which renders the absence unauthorized and that being the factual position, the labour Court was justified in according approval to the order of dismissal/removal as passed by the employer.
36. Accordingly, the present petition being sans merits is hereby dismissed.
Certified copy as per rules.
(MILIND RAMESH PHADKE)
JUDGE
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Date: 2024.12.06 13:54:34 -08'00'