Calcutta High Court (Appellete Side)
The Institution Of Engineers (India) vs The State Of West Bengal & Ors on 10 August, 2018
Author: Arindam Sinha
Bench: Arindam Sinha
1
10.08.2018
Item No. 91
Ct. No.4
AB
W.P. 25115 (W) of 2017
+
C.A.N. 10731 of 2017
+
C.A.N. 10732 of 2017
In the matter of: The Institution of Engineers (India).
-versus -
The State of West Bengal & Ors.
Mr. Soumya Majumder
Ms. Sormi Dutta
..... for the petitioner
Mr. Gouranga Bhattacharyya
....... For the respondent no. 3
Respondent no. 3 workman had applied under section 10(1B) (d) of Industrial Disputes Act, 1947 challenging order of termination, praying for reinstatement along with back wages. By order no. 55 dated 28th July, 2014 Labour Court found domestic enquiry to have been improper and invalidated the same by setting aside enquiry report. Petitioner/employer unsuccessfully challenged said order by writ petition. Hearing on application thereafter proceeded before Labour Court. Evidence was taken and award dated 30th December, 2016 made. Petitioner/employer has challenged said award in this writ petition. 2 Mr. Majumder, learned advocate appears on behalf of petitioner/employer, which is an institution. He submits, the workman would have retired in year 2015. His service was terminated in year 2003. This termination by dismissal from service was on 31st December, 2003 after which in June, 2006 the workman collected employment experience certificate as well as provident fund dues. Long thereafter, on 1st December, 2008 he made representation to Conciliation Officer purporting to raise an industrial dispute.
Mr. Majumder submits, findings in the award are perverse. Issue before Labour Court was essentially whether dismissal from service of the workman was justified. Dismissal was on ground the workman was guilty of being a habitual absentee. Finding that on the several occasions the workman was absent, leave had been granted, is perverse. No evidence had been adduced by the workman which could be basis of such finding. It was a finding based on no evidence. He draws attention to exhibits ME-8, ME-10 and ME-11 which have been disclosed from pages 26 onwards in the writ petition. He submits, allowing petitioner to resume duty is not evidence to prove leave was granted. He 3 relies on three Judge Bench judgment of Supreme Court in Maan Singh Vs. Union of India reported in (2003) 3 Supreme Court Cases 464. He places paragraphs 1, 4, 6 & 11 to 16. He submits, Supreme Court in that case had found there was no conflict between two decisions earlier rendered. In both the cases charge against appellants were of habitual absence of long period on several occasions unauthorizedly. Supreme Court held view taken by disciplinary authority is justified.
Mr. Majumder also draws attention to deposition of the workman in cross-examination held in Labour Court on 28th July, 2016. Evidence of the workman relied upon by Mr. Majumder, as recorded by the Court, is reproduced below:
"Not a fact that my absence was unauthorised. I informed in writing about the reasons of my absence but I cannot remember the exact date. On perusal of the documents, the witness replies that I do not find any such reply submitted by me."
Though his client was unsuccessful in challenging setting aside of disciplinary proceedings conducted by it against the workman but here was admission of the workman in Labour Court when on perusal of documents he said he did not submit any reply meaning 4 thereby he did not avail of opportunity to show cause in the since set aside disciplinary proceedings. Referring to, according to him, purported reasons and findings extracted below, he submits, they are perverse.
"1. Although it appears from the record that in some documents (Ext. V, Q) the applicant has agreed that he was habitual absentee due to his physical problem but it cannot be considered as self declaration for habitual absenteeism because the management in each occasion granted the leave of the applicant considering the ground of his illness.
In view of my above all discussion I am of opinion that granting leave of the applicant on medical ground by the management of the O.P. itself proves that the ground of absence of the applicant was considered as true and genuine. So, when the applicant was permitted to resume his duty by the management on perusal of the medical certificate, the said leave for various periods cannot be said as unauthorised as alleged.
2. Considering all the materials on record, I am of view that although the applicant remained absent from duty for a considerable period of time but considering the fact that the management permitted the applicant to join duty after considering the medical certificate, the charge of habitual absenteeism as alleged by the management has not been proved."
He reiterates, documentary evidence by aforesaid exhibits is proof only of his client having allowed the workman to resume duty for maintaining correct record 5 of duration of service and adjustment of leave due to delinquent employee. It cannot be construed to be grant of leave. He seeks interference.
Mr. Bhattacharyya, learned advocate appears on behalf of the workman. He submits, his client's case was upheld by this Court in dismissing petitioner's earlier writ petition no. W.P. 8140(W) of 2015. He relies on observations made in order dated 8th June, 2015 dismissing that writ petition to submit, findings in that order binds the parties, there being no appeal preferred. Petitioner's present same grievance is barred by res judicata.
This Court has considered documentary evidence drawn attention to by Mr. Majumder. No other disclosure was brought to attention of Court. Said disclosures clearly are documentary evidence, as was before Labour Court, to show petitioner had been allowed to resume his duties in employment, nothing more nothing less. In Maan Singh (supra) Supreme Court had said when question involved therein came up for consideration, in view of apparent conflict between two earlier judgments of Supreme Court, the first in State of Madhya Pradesh Vs. Harihar Gopal reported 6 in 1969 SLR 274 (SC) and the second in State of Punjab Vs. Bakshish Singh reported in (1998) 8 Supreme Court Cases 222 the case was referred to three Judge Bench. Facts in Maan Singh (supra) are not similar to facts in this case. However, facts in Harihar Gopal (supra) and Bakshish Singh (supra) are similar. In Maan Singh (supra) Supreme Court found aforesaid two decisions were not conflicting as would appear from passage extracted below:
"Therefore, the appeal in Bakshish Singh case was allowed. It is only in the headnote of the Report that the question whether an employee could be held guilty of misconduct on the basis of unauthorised absence is set out as decided in the trial court and affirmed by the first appellate court and not from the judgment of this Court such a conclusion can be drawn since there is no consideration or discussion at all, much less any declaration of law is made by this Court on this aspect of the matter. This Court in that case really considered the scope of powers of remand, made the order as set out above and did not, in fact, consider the question whether the view expressed by the first appellate court in affirming the order of the trial court was justified or not, but proceeded on the basis that on the conclusion reached by the first appellate court whether remand to disciplinary authority is permissible in law and recorded its findings. Therefore, the decision of this Court in Bakshish Singh case is not an authority for the 7 proposition that the order terminating the employment cannot be sustained inasmuch as in the later part of the same order the disciplinary authority also regularised unauthorised absence from duty by granting an employee leave without pay. In our view, thus, there is no conflict in this regard with the decision in Harihar Gopal case."
This being the position decision in Maan Singh (supra) cannot be applicable to this case because, as aforesaid, facts in Maan Singh (supra) and this case are different. What applies to this case are decisions in Harihar Gopal (supra) and Bakshish Singh (supra). Regarding Bakshish Singh (supra) above passage extracted from Maan Singh (supra) says what Bakshish Singh (supra) had decided. Paragraph 5 in Maan Singh (supra) says what Harihar Gopal (supra) decided:
"5. In Harihar Gopal case this Court noticed that the delinquent officer in failing to report for duty and remaining absent without obtaining leave had acted in a manner irresponsibly and unjustifiedly; that, on the finding of the enquiry officer, the charge was proved that he remained absent without obtaining leave in advance; that the order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service and adjustment of leave due to the delinquent officer and for regularising his absence from duty. This 8 Court's attention was not invited to any rule governing the respondent's service conditions under which an order regularising absence from duty subsequent to termination of employment had the effect of invalidating termination. Thus, this Court concluded that it could not be held that the authority after terminating the employment of the delinquent officer intended to pass an order invalidating that earlier order by sanctioning leave so that he was to be deemed not to have remained absent from duty without leave duly granted."
Both Harihar Gopal (supra) and Bakshish Singh (supra) are on the point of challenge raised in this writ petition. This Court is constrained to find purport of documents being aforesaid exhibits are neither sanction nor grant of leave to the workman. They were for maintaining a correct record of the duration of service and adjustment of leave to delinquent employee as found on similar facts in Harihar Gopal (supra).
Issue in earlier writ petition between parties was whether disciplinary proceedings were duly conducted against the workman. That issue was decided by order dated 8th June, 2018. This Court will not allow re- agitation of such issue as barred by res judicata. Any other observation not relevant to decision on that issue, as might be relevant to present challenge, cannot be 9 binding to attract bar of res judicata. In this context reference may be had to judgment of Supreme Court in UOI vs Dhanwanti Devi reported in (1996) 6 SCC 44 where in it was said:
"....A decision is only an authority for what it actually decides. What is of the essence in decision is its ratio and not every observation found therein....."
For aforesaid reasons this Court finds fit to interfere. Reasons and findings of Labour Court to set aside order of dismissal are perverse as based on no evidence. Impugned award is set aside. Petitioner, however, will pay Rs.3,00,000/- to respondent no. 3 on Mr. Majumder having prevailed on his client to accept such direction. This Court expects the payment would be made with expedition.
The writ petition along with related applications are disposed of.
(Arindam Sinha, J.)