Calcutta High Court
Tarun Kumare De Biswas vs Presiding Officer, Central Government ... on 8 May, 1990
Equivalent citations: 95CWN216, (1991)IILLJ208CAL
JUDGMENT K. Ganguli, J.
1. The subject matter of challenge in this application under Article 226 of the Constitution of India, is an award passed by the Presiding Officer, Central Government Industrial Tribunal, Calcutta in Reference No. 44 of 1979 on February 2, 1984.
2. The matter was very hotly contested and both parties made very long arguments in support of their respective contentions. Both sides also cited a number of case laws.
The admitted position seems to be as follows :-
The petitioner was appointed as a subordinate staff of the respondent No. 3 in 1969 and on April 2, 1975, he was promoted to the post of clerk on probation after he had obtained his degree of Bachelor of Commerce. It is also the admitted position that soon after his promotion to the post of Clerk, the petitioner became a chronic absentee and in fact learned Tribunal found that between August, 1975 and February, 1976 the petitioner was absent on 94 days. It is also the common case of the parties that the petitioner was asked time and again to explain the cause of his frequent absence without the leave and severe warnings are given to the petitioner on atleast three occasions. The word 'warning' has some significance in the facts and circumstances of this case. The petitioner, in fact, was reverted to the post of a sub-ordinate staff and was not confirmed in his promoted post.
It is also the admitted case that because of such prolonged absence without sanctioned leave the respondent employers terminated the service of the petitioner by a letter dated May 4, 1976 which is Annexure 'A' to the writ petition.
4. The issue in the order of reference is as follows:
"Whether action of the management of Mercantile Bank Limited,8, Netaji Subhas Road, Calcutta in terminating the services of Shri Tarun Kr. De Biswas with effect from May 4, 1976 is justified? If not, to what relief the concerned workman is entitled?"
The learned Tribunal on the examination of the evidence and the materials on record answered the issue in the affirmative holding, inter alia , that the order of termination was justified in the facts and circumstances of the case. The learned Tribunal in the process of the examination of the evidence on record found as a matter of fact that three previous warnings were given to the petitioner before the order of termination impugned in the application, was passed. According to the petitioner the award of the learned Tribunal is fraught with perversity, inter alia, inasmuch as the Tribunal relied on the three letters of the employers purporting to give 'warnings' to the petitioner. According to the petitioner such 'warnings' were not 'warnings' as contemplated in the Shastry award read with the terms of the bipartite settlement.
5. It may be noted here that the respondent employer first of all tried to contend that the order of termination of the petitioner was a case of termination simpliciter but by way of amendment of the written statement the respondent employer changed its case from termination simpliciter which would amount to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947, to a case of dismissal as a result of a major misconduct within the meaning of the service rules governing the petitioner. Such amendment of the plea was allowed by the learned Tribunal.
6. Basically a three-fold submission was made on behalf of the petitioner, viz:
(i) that the allegation made against the petitioner in the impugned letter of termination cannot be treated as a major misconduct;
(ii) that if according to the original written statement the termination of service of the petitioner is a case of simple termination it would amount to retrenchment within the meaning of Section 2(oo) of the aforesaid Act and the provisions of Section 25F of the said Act not having been complied with, the order of termination would be bad in law;
(iii) that even if the termination is taken to be a termination by way of punishment not coming under the purview of retrenchment, such termination having been effected with-out holding any enquiry, the 'relation back' doctrine will not apply even if the termination is found to be justified. Such termination should be effective from the date of the Award, the consequence of which will mean that the petitioner would be entitled to full wages for the period between the date of the letter of termination that is May 4, 1976 and the date of the award, i.e., February 2, 1984.
7. The respondent first of all took the point of prolonged delay on the part of the petitioner at every stage of the proceeding which is unexplained and on which ground the writ petition should be dismissed in limine. For reasons to be stated hereinafter the question of delay will be discussed, later on and not as a preliminary point for the simple reason that the matter was heard at length. It would not be proper for this court to throw out the application in limine on the ground of delay alone. The Court owes a duty to the parties to take into consideration also the very substantial questions of law raised by the parties. The other point taken by the respondents is the point of 'gross misconduct' as defined in paragraph 522(4)(f) of the Shastry award. The respondents also cited several cases on the question of the application of the doctrine of 'relation back'. The letters of the respondent on which the learned Tribunal laid much emphasis are the letters dated May 19, 1975, November 3, 1975 and April 1, 1976 which are collectively marked as Annexure 'E' to the petition. The first letter dated May 19, 1975 states that the petitioner had been frequently absent and that such absence was being treated as leave without pay and that the petitioner would not be permitted to join the office without submitting an explanation in writing supported by documentary evidence acceptable to the employer. The petitioner was also threatened in the said letter that if such a state of affairs continued, the petitioner may not be confirmed in the post of Clerk. The next letter dated November 3, 1975 also gives a list of the number of days on which the petitioner was absent without any sanctioned leave and in the third paragraph of the letter it is stated "we must warn you that unless you show definite improvement in your attendance, serious view 'will be taken by us'. The letter dated April 1, 1976 also gives a list of days on which the petitioner was absent. In the last paragraph of the said letter also it is stated as follows:
"We 'warn' you once again for your frequent absence and unless you are regular in your attendance we 'will' act in terms of the bipartite settlement."
8. The learned Tribunal laid emphasis on the aforesaid three letters. Rule 522(4)(f) of the Shastry award corresponds to Clause 19.5(f) of the bilateral settlement dated October 19, 1966 provides as follows:
" 19.5. By the expression 'gross misconduct' shall be meant any of the following acts and omissions on the part of the employee :
(f) habitual doing of any act which amounts to minor misconduct as defined below, 'habitually' meaning a course of action taken or persisted in notwithstanding that atleast on three previous occasions censure or warnings have been administered or an adverse remark has been entered against him."
9. Mr. Sengupta contended that the three letters mentioned herein before do not constitute any warning within the meaning of the provisions of the Shastry award or the bilateral settlement referred to above. He contended that for imposing such punishment for minor misconduct specific procedures have been prescribed in paragraphs 521(8) and 521(10). Mr. Sengupta further contended that in the instant case no such punishment as contemplated by paragraph 521(7) of the Shastry award has been imposed and as such the present case cannot be treated as a major misconduct. Mr. Sengupta emphatically contended that even from the said letters being annexure 'E' to the petition if it is assumed that warnings have been given, such warnings had been administered wrongfully and without following the prescribed procedure. Mr. Sengupta contended that by the word 'warning' it must be meant a warning given to an employee as a matter of punishment and a punishment even for a minor misconduct must be awarded in accordance with the procedure laid down and not otherwise. The so-called warnings given to the petitioner in the aforesaid three letters are not warnings in the legal sense of the term and as such cannot be a source for an offence of major misconduct. In fact, Mr.Sengupta argued that in the letters stated hereinbefore, the warnings were given but no action was taken against the petitioner but the said letters merely warned the petitioner that action 'would' be taken. This, Mr. Sengupta contended,is not a warning by way of a punishment and as such cannot be treated as a habitual doing of an act which amounted to a minor misconduct.
10. Mr. Pradip Ghosh appearing on behalf of the employer strongly contended that major misconduct having been defined in a particular way, if three warnings were given factually that would constitute major misconduct and legality or otherwise of the imposition of the punishment of such minor misconduct would be totally irrelevant and extraneous. Mr. Ghosh further contended that as the previous warnings were not challenged by the petitioner, he was estopped from contending before the learned Tribunal that the previous warnings were not meted out to him as a punishment for the minor misconduct in accordance with law.
11. I think there is considerable force behind the argument of Mr. Sengupta on this point. A penal provision has to be very strictly construed and punishment can be meted out to an employee only in strict compliance of the rules laid down therfor. The admitted position is this that before giving the alleged warnings no proceedings in accordance with the Rule (Para) 521 (8) or Rule (Para) 521 (10) were taken recourse to by the employer.
12. Forceful arguments were made on the application of the doctrine of 'relation back'. The question will only arise if the order of termination is held to be valid. For reasons stated hereinbefore, I am of the opinion that the learned Tribunal missed the point and proceeded on the basis that repetition of the word 'warning' three times would be enough for the purpose of the termination of the service of the petitioner on the ground of a major misconduct within the meaning of paragraph 522 (4) (f) of the Shastry Award. In that view of the matter it may be held that the order of termination was held to be valid by the learned Tribunal on a wrong application of law and as such is to that extent perverse. It is true that the respondent employer could, before the learned Tribunal establish-or justify, their action relating to the three pervious warnings, even if they did not initiate any enquiry previously in terms of Paras 521 (8) and 521 (10) of the Shastry Award but also, they did not choose to do so and as such the three previous warnings were not justified. If the three previous minor misconducts were not justified, then the major misconduct based on such minor misconducts cannot also be justified.
In the premises, it is not necessary to wax eloquence on the question of the doctrine of 'relation back'.
13. Now the question of remedy. Two courses are open to this Court; one is to remit the entire matter back to the learned Tribunal for a decision of the consequence of the order of termination being held to be bad in law and the other is for this Court to decide what relief the petitioner would be entitled to. The matter is lingering since 1976, 14 years have passed, both parties, specially the petitioner is suffering in agony and being out of employment is feeding on the copious diet of futility and frustration for the last 14 years and if the matter is sent back to the learned Tribunal for a fresh spell of litigation it would be very harsh to the petitioner. It is better that this Court decides the consequential benefit to be given to the petitioner. What the Tribunal can do, this Court can also do.
15. The writ Court is a Court of equity. It is a Court which favours the vigilant and not the indolent. This Court, in giving remedy to a person will also take into consideration the totality of the circumstances which would or would not entitle a petitioner to obtain relief. The award was passed on February 2, 1984 and the instant petition was moved in 1988. It has been stated in paragraph 33 of the petition that due to poverty the petitioner could not collect the material resources earlier to be able to move this court and as such he is not guilty of any wilful laches or delay.
16. The matter is not that simple. The totality of the circumstances speak otherwise. A simple list of dates will amply demonstrate the lackadaisical attitude of the petitioner in the entire matter.
The service of the petitioner was terminated with effect from May 4, 1976; the petitioner waited for more than 2 1/2 years before approaching the appropriate Regional Labour Commissioner to intervene in the Matter. The order of reference was made on July 4, 1979; the petitioner filed his written statement about 3 1/2 years later on December 22.1982 and the learned Tribunal had to make observations on this aspect of the matter about the inordinate delay caused by the petitioner's own negligence; the award of the respondent No. 1 was passed on February 2, 1984 and was published by the notification dated February 16, 1984. The petitioner thereafter waited for 4 years and moved this application on or about March 18, 1988.
17. It appears that all through the petitioner showed extreme callousness in the whole matter the reason for which was not poverty alone. For initiating a conciliation proceeding no money is required, for filing a written statement no money is required, for getting the matter heard before the Tribunal not much money is required. The explanation given for the delay relates only to the period between the date of passing of the award and the date of moving the instant petition. The character of the petitioner towards his service life has been revealed by such demonstrations of his activities. He is callous even in his own matters and it will be unfair on the part of this court to throw back such a person unceremoniously on the lap of the employer thereby plunging the employer into an abyss of uncertainty. If a person is so callous in his own matter it cannot even be imagined how callous he would be in the matters relating to someone also, that is his employer. In the present complicated competitive banking society speed is what is needed utmost. The employer cannot be expected to rely on such an employee whose callousness have already been demonstrated to the limits of its span. Mr. Sengupta, in the course of his argument, at one point contended that loss of confidence can only arise in a case where some confidence is reposed on an employee and the petitioner having been reverted to the post of a sub-staff namely, a peon, is not acting in any substantial capacity and as such the question of loss of confidence cannot arise in the instant case. Mr. Sengupta contended that if a security guard sleeps on his duty that would be a case of loss of confidence but not if a peon remains absent for days without any convincing explanation. Confidence is not necessarily regarding honesty but it also brings within its fold the question of reliability. It cannot be expected that the bank can rely on the petitioner in connection with any serious work.
18. In the circumstances, the following order is passed.
The award passed by the Presiding Officer, Central Government Industrial Tribunal on February 2, 1984 in reference case No. 44 of 1.979 and published by the Government of India notification dated February 16, 1984 which is Annexure 'D' to the petition is hereby set aside. So far as the consequential benefit is concerned I am of the opinion that interest of justice will be served if the respondent No.4 is directed to pay to the petitioner an amount of Rs. 1,50,000/ (Rupees one lakh and fifty thousand) by way of compensation and/or damages for such wrongful termination.
19. In the premises, I direct the respondent No.4 to pay to the petitioner a sum of Rs. 1.50 lakhs within three weeks from the date of communication of this order.
20. There will, however, be no order as to costs.