Calcutta High Court
Workmen Represented By Brooke Bond ... vs Eighth Industrial Tribunal And Ors. on 19 February, 2002
Equivalent citations: (2002)1CALLT555(HC), 2002(3)CHN53, [2002(94)FLR106]
Author: P.K. Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
JUDGMENT P.K. Chattopadhyay, J.
1. The petitioner No. 2, Shri A.N. Pandit is a dismissed workman who was appointed as salesman in the company on 18th July, 1962 and was permanently posted at Keonjhar, Orissa which was his headquarter. A sudden check of the Keonjhar depot was carried - out on 8th April 1983 by Shrl S. Chadha, Deputy Area Sales Manager along with other officers of the company. After conducting the sudden check/ Inspection of the depot it was found that there was net cash shortage of Rs. 5.334 and it was further detected that there was stock shortage of 30.57Kg of tea valued at Rs. 1,083.35 and excess stock of tea valued at Rs. 141.99.
2. Petitioner No. 1 was asked to submit explanation in this regard. Shri Pandit submitted before the respondent company wherein it was contended that some quantity of tea have been supplied in the local market just on the previous day of the checking i.e. on 07.04.83 and the price of the said tea was to be collected on the very next day of supply i.e. on 08.04.83. According to the Petitioner No. 2 the amount in question could not be collected from the market as he was held up by reason of the sudden check and of inspection of the depot. The management of the company however, was not satisfied with this explanation of the Petitioner No. 2 and a charge sheet was issued on various counts. The company further Issued another charge sheet on 3rd 'June 1983 wherein the net shortage of the amount was stated to be Rs. 10,978.34 instead of the earlier mentioned amount of Rs. 6218.79. The Petitioner No. 2 submitted a reply to the amended charge sheet.
3. The concerned authority in the management of the company was not satisfied with the aforesaid explanation of the Petitioner No. 2 in answer to the charge sheet and therefore decided to conduct a domestic enquiry in respect of the charges mentioned in the charge sheet. According to the Petitioners the said enquiry was held in an irregular manner and without following the principles of natural Justice. The Enquiry Officer after conducting the departmental enquiry came to a finding that the charges against the workman concerned i.e. against the Petitioner No. 2 herein had been established. The Enquiry Officer held the petitioner No. 2 guilty, of charges and submitted the enquiry report to that effect
4. The disciplinary authority concurred with the aforesaid findings of the Enquiry Officer as mentioned in the enquiry report and dismissed the Petitioner from the service of the company on 29th October, 1985. Thereafter a dispute was raised on behalf of the workman concerned challenging the decision of the respondent company regarding dismissal of the Petitioner No. 2 from the service of the company and a reference was made before the Eighth Industrial Tribunal for adjudication of the Issue whether the dismissal of Shri A. N. Pandit, Petitioner No. 2 herein from service of the company with effect from 29th October, 1985 is justified.
6. Written statements were filed before the Tribunal on behalf of the respective parties. The learned Judge of the Tribunal ultimately held that the dismissal of the workman concerned namely the Petitioner No. 2 herein in justified and he is not entitled to any relief. An award was passed by the learned Judge to that effect. The Petitioners herein challenging the validity and/or legality of the aforesaid award of the learned Judge of the Eighth Industrial Tribunal filed a Special Leave Petition before the Hon'ble Supreme Court and the said Special Leave Petition was dismissed by the Supreme Court on 25th August, 1992. After dismissal of the Special Leave Petition the Petitioners filed the present writ petition before this Court challenging the said award of the Eighth Industrial Tribunal.
6. It was contended on behalf of the Petitioners that though the Special Leave Petition has been dismissed by the Supreme Court, but, the same cannot put an embargo on the legal right of the Petitioners to challenge the award passed by the Tribunal on merits before this Hon'ble Court under Article 226 of the Constitution of India. The learned Advocate of the Petitioners submits that the Hon'ble Supreme Court refused to grant special leave to prefer an appeal from the decision of the Tribunal before the Supreme Court and thus, according to the learned advocate of the Petitioners Supreme Court had no occasion to consider the matter on merits. It is contended on behalf of the Petitioners that the domestic enquiry was not conducted properly and the principle of natural Justice was flagrantly violated at various stages. The Petitioner was posted at Keonjhar and was transferred to Calcutta only for facing the domestic enquiry. The main witnesses were stationed at Keonjhar and no financial assistance was even given to the workman concerned to bring the witnesses from Keonjhar. The employee concerned was seriously affected for holding of the domestic enquiry at Calcutta instead of at Keonjhar, where the Petitioner dis-charged his duties as an employee of the Company.
7. The learned Advocate of the Petitioners also urged that the punishment awarded was not proper. It was submitted on behalf of the petitioners that the learned Judge of the Tribunal never considered whether the punishment of dismissal or discharge was necessary in the case on the basis of the relevant records available before the said Tribunal. According to the learned counsel of the Petitioners, learned Judge of the Tribunal should have considered the proportionality of the punishment. Learned counsel of the Petitioners further contended that in absence of proper materials, learned Judge of the Tribunal upheld the order of dismissal passed against the Petitioner No. 2 by the Disciplinary Authority and the provisions of Section 11A of the Industrial Disputes Act was also not considered by the learned Judge of the Tribunal in an appropriate manner.
8. Learned Advocate for the petitioners cited a decision of the Supreme Court in the case of Workmen of F.T. and R. Company v. The Management, . wherein the Supreme Court held as under:
"9. The above position has been completely changed by Section 11A. It is now obligatory on an employer to hold a proper domestic enquiry in which all material evidence will have to be adduced. When a dispute is referred for adjudication and it is found that the domestic enquiry conducted by the management is defective or if it is found that no domestic enquiry at all had been conducted, the order of discharge or termination passed by the employer becomes, without anything more, unjustified and the Labour Tribunals have no option but to direct the reinstatement of the workman concerned, as his discharge or dismissal is illegal. Even in cases where a domestic enquiry has been held and finding of misconduct recorded, the Labour Tribunals have now full power and Jurisdiction to re-appraise the evidence and to satisfy themselves whether the evidence Justifies the finding of misconduct. Even if the enquiry proceedings are held to be proper and the finding of misconduct is also accepted, the Tribunal has now power to consider whether the punishment of dismissal or of misconduct of which the workman is found guilty. In such circumstances, the Tribunal can also give any other relief to the workman including the imposing of the lesser punishment. In cases where an employer had not conducted any enquiry or when the enquiry conducted by him is held to be defective, the employer will not be given any opportunity to adduce evidence before the Labour Tribunal for justifying his action. Various decisions of this Court have emphasised that there is an obligation on the part of an employer to hold a proper enquiry before dismissing or discharging a workman. And it has also been stated that the enquiry should conform to certain well-defined principles and that it should not be an empty formality. If the management being fully aware of this position in law does not conduct an enquiry or conducts a defective enquiry, the order passed by it is Illegal and it cannot take advantage of such Illegality or wrong committed by it and seek a further opportunity before the Tribunal of adducing evidence for the first time. Generally, the Standing Orders also provide for the conduct of an enquiry before imposing a punishment The Standing Orders have been held to be statutory terms of conditions of service. If an employer does not conform to the provisions of the Standing Orders he commits an illegality and an order passed, which is illegal, has only to be straightway set aside by the Tribunal. Decisions of this Court, while recognising that an opportunity has to be given to an employer to adduce evidence before the Tribunal for the first time, have not given due Importance to the effect of a breach of a statutory obligation committed by an employer in not conducting a proper and valid enquiry as per the Standing Orders. This anomaly has now been removed by the legislature".
9. Mr. Dipak Ghosh, the learned counsel appearing on behalf of the respondent company submitted that the principles of natural Justice were duly complied with at the time of conducting the domestic enquiry and no Irregularity was committed in the matter of conducting the departmental enquiry, in respect of the Petitioner No. 2 herein. The learned counsel of the respondent company also submitted that both the parties adduced evidence before the Enquiry Officer and also brought witnesses and examined them. The respondent company also produced several documents during the enquiry. It has been contended on behalf of the respondent company that the workman concerned was duly informed in respect of the charges levelled against him and the witnesses were examined in presence of the workman concerned. As a matter of fact, the concerned workman namely the Petitioner No. 2, herein, examined four witnesses in his defence. It was further contended on behalf of the respondent company that the workman was given a fair opportunity to cross-examine the witnesses and further more the Enquiry Officer recorded his findings and gave reasons in the enquiry report.
10. Mr. Ghosh further submitted that the charge of misappropriation of cash by the workman has been established in the departmental proceedings and as such the learned Judge of the Tribunal rightly held that the punishment of the dismissal was not disproportionate to the Act of misconduct in question.
11. On the question of validity and observance of the principles of natural justice in conducting the domestic enquiry, the learned Judge of the Tribunal did not find that the Enquiry Officer had committed any basic error or acted in violation of the principles of natural Justice in any way.
12. Now, from the records it appears that the workman namely, the Petitioner No. 2 herein was transferred after issuance of the chargesheet from Keonjhar to Calcutta. Admittedly, the charges mentioned in the chargesheet in respect of the Petitioner No. 2 are concerning the activities of the said Petitioner No. 2 as salesman in the company while he was posted at Keonjhar. It has been clearly mentioned in the chargesheet that after checking the depot at Keonjhar series of irregularities were observed both in regard to the cash and stock holding in the depot. The workman concerned in reply to the chargesheet specifically mentioned that following the usual practice to grant short credit to dealers some quantity of a tea was supplied in the local market to the dealers Just on the previous day of the checking carried out at the depot at Keonjhar.
13. The workman categorically stated that the price of the said tea was supposed to be collected on the day when the inspection was being carried out at the depot in question and during the inspection the Petitioner No. 2 was held up and as such could not collect the price though the same was due on the day the checking team was conducting inspection at the depot in question. The Petitioner No. 2 all along took a firm stand tht neither there had been any shortage of stock nor actually there had been any cash shortage. In the aforesaid circumstances, the dealers of the company at Keonjhar were vital witnesses for the purpose of testifying the correctness or otherwise of the stand taken by the Petitioner No. 2. The respondent company after issuing the chargesheet transferred the Petitioner No. 2 at Calcutta to face the departmental enquiry without appreciating the fact that the vital witnesses being the dealers at Keonjhar would not be able to depose before the Enquiry Officer. The Petitioner No. 2 being a salesman cannot persuade the dealers to come to Calcutta to depose before the Enquiry Officer. Furthermore, the dealers are in no way concerned about the departmental proceedings initiated by the company against its salesman. However, no attempt was made on behalf of the respondent company to Justify the correctness of the stand taken by the Petitioner No. 2. The Petitioner No. 2 was prevented from producing the vital witnesses like the dealers/shop-owners concerned before the Enquiry Officer due to non- availability of necessary funds from the respondent company for bringing the witnesses from Keonjhar to Calcutta.
14. Since, the respondent company after, Issuing the chargesheet transferred the Petitioner No. 2 from Keonjhar to Calcutta, it was reasonably expected that the respondent company would bear the financial burden for bringing the witnesses particularly the defence witnesses from Keonjhar to Calcutta in order to ensure reasonable opportunity to the Petitioner No. 2 to defend himself before the Enquiry Officer. Accordingly, I am constrained to hold that the respondent company failed to provide reasonable and adequate opportunity to the charged workman to defend himself in the departmental enquiry. The Enquiry Officer committed an error by not directing the respondent company to bear the expenses for bringing the witnesses by the charged workman from Keonjhar in his defence and thereby violated the principles of natural Justice in conducting the departmental proceedings. The departmental proceedings, therefore, has been vitiated in the instant case which the learned Judge of the Tribunal failed to appreciate and erroneously held that the Enquiry Officer had not committed any error or did not act in violation of the principles of natural justice in any way,
15. Again the question that crops up is whether considering the evidence adduced on behalf of the respondents and also the materials on record, the Enquiry Officer was Justified in coming to a conclusion that the charges relating to shortage of stock and cash shortage levelled against the petitioner have been established. Now this Court may consider whether the finding of the Enquiry Officer is based on cogent materials. It has been established before the Enquiry Officer which was also accepted by the Tribunal and recorded in the award that the checking team found a net cash shortage of Rs. 5334.16 at Keonjhar depot in the course of checking on 08.04.83. But it has also come on record that the working deposited the said amount on the very next day i.e. on 09.04.83 with the Keonjhar branch of State Bank of India in the name of the Company. It is also mentioned in the award that the workman in his explanation addressed to the Deputy Sales Manager specifically submitted that the said sum of Rs. 5334 which was found short on the day of checking i.e. on 08.04.83 was actually due and payable to the company by the customers and the workman concerned after collecting the said amount from the customers on the very next day deposited the amount in the bank. The relevant extracts from the award are quoted hereunder:
"The team of Shri. S Chadha and Shri B.N. Biswas (C.W.3) found a net cash shortage of Rs. 5334.16p. at Keonjhar depot on checking the same on 08.04.83. The shortage of cash in the depot on the said date is admitted by the workman inasmuch as on 09.04.83 he deposited with the Keonjhar branch of the State Bank of India a sum of Rs. 5334 in favour of the Regional Accounts Office, Patna. In his explanation dated 13.06.83 addrressed to the Deputy Sales Manager (Ext. 1/4) Shri Pandit says the aforesaid sum (of Rs. 5334/-) was paid by the customers on 09.04.83 against short time credits advances to them. But, significantly, the workman did neither depose himself in the domestic enquiry nor examined any other witness in support of any case that the aforesaid admitted shortage of Rs. 5334/- occurred due to his granting to the dealers at any time prior to 08.04.83 short credits totalling the aforesaid sum, and/or that he had never misappropriated the said money."
16. The workman concerned all along took a definite stand that he supplied the goods to the customers of the company in the local market at Keonjhar and the price of the same could not be collected as the said workman was held up due to the checking of the depot by the inspecting team and admittedly on the very next day, the amount was collected by the workman which he deposited in the bank in favour of the company. In the aforesaid circumstances. It is to be examined whether the Enquiry Officer was right in coming to the conclusion that there had been a shortage of stock and/or cash shortage and the workman had misappropriated the stock and/or the cash.
17. If it is assumed that the workman concerned granted short term credits to the customers of the company and recovered the said amount from the customers and deposited in the name of the company afterwards even then whether the same can be treated as misappropriation of cash and/or whether the Enquiry Officer was justified to hold that the shortage of stock and cash shortage has been established under such circumstances even though admittedly the entire amount was deposited by the workman on the very next day after collecting from the customers of the company. It was never contended by the company nor it was established before the Enquiry Officer that the workman concerned never supplied the product of the company to the customers from the stocks of the Keonjhar depot, nor it has been established that against such supplies made by the concerned workman no amount was due and payable by the customers of the company and furthermore it was also never proved as incorrect.
18. On the other hand , it has been established before the Enquiry Officer that the workman concerned after collecting the sales proceeds from the customers deposited the amount equivalent to the cash shortage amount in the bank in favour of the company on the very next day after the day of checking of the depot at Keonjahar. Even if it is assumed that the concerned workman sold the company's product against short-term credits to customers in deviation of the company's rules, but under no circumstances it can be said that the workman concerned had misappropriated the company's stocks and/or misappropriated the cash of the company. If the company's product is supplied to the customers by a salesman and the amount is collected against such supply after a lapse of few hours then it cannot be said that the salesman concerned has sold the product of the company to the customers on credit.
19. The aforesaid action of the salesman can be treated as a business arrangement between the salesman and the customers of the company, it cannot be said that the workman concerned is guilty in shortage of stock and/or cash shortage and/or misappropriated the amount found short in course of inspection which had been charged against the workman concerned. It fs amazing to note that even after collecting the money from the customers and depositing the same on the very next day, the Enquiry Officer concerned held the workman concerned namely, the Petitioner No 2 was guilty not only of cash shortage but also in respect of misappropriating the amount found short at the time of Inspection. Unfortunately, the learned Judge of the Tribunal also held that the finding of the Enquiry Officer as was affirmed and accepted by the disciplinary authority cannot be said to be perverse and baseless.
20. "perversity is nothing by contrary to reasoning". In the instant case the enquiry Officer arrived at a decision which no reasonable person could arrive on the basis of evidence and materials on record. In case of perverse finding, High Court is empowered to exercise its Jurisdiction under Article 226 of the Constitution of India as has been held by the Hon'ble Supreme Court in the case of Syed Yakoob v. Radhakishnan reported in AIR (J964 SC 447). In the present case, after examining the findings it appears that "there had been no evidence before the Enquiry Officer on the basis whereof he could come to the impugned finding that there has been actual shortage of stock and/or cash shortage of the company and the charged workman misappropriated the stock and/or cash of the company, On the contrary, it has been established that the charged workman supplied the products of the company to its customers and could not collect the sale proceeds on account of Inspection of the depot on 08.04.83 and on the very next day i.e. on 09.04.83 collected the entire amount which was found shortage in course of Inspection on the earlier day and such amount was deposited in the name of the company with the State Bank of India branch on 09.04.83.
21. Accordingly, there was no material and/or evidence before the Enquiry Officer on the basis whereof the said Enquiry Officer could reach a conclusion that the charges of shortage of stock, cash shortage and also the charge of misappropriating the amount of the company levelled against the workman had been proved. In the absence of proper evidence the Enquiry Officer could not have reached the aforesaid conclusion that the charges against the workman concerned regarding shortage of stock and/ or cash shortage and also misappropriation of the amount had been proved and as such the finding of. the Enquiry Officer is totally vitiated for want of evidence. Since the findings of the Enquiry Officer have been affirmed by the Disciplinary authority, the same also stand vitiated. Consequently, the decision of the learned Tribunal in this regard is also not sustainable and liable to be set aside. In the Instant case, the findings of the Enquiry Officer are totally vitiated for want of acceptable evidence to support the charges of misconduct After considering the materials and evidence on record I find that the conclusion reached by the Enquiry Officer is such that no prudent man can come to the same conclusion and as such the finding of the Enquiry Officer should also be treated as perverse and based on no evidence.
22. Hon'ble Supreme Court also had the occasion to consider similar types of findings recorded by the Enquiry Officer in the case of P.C. Joshi v. State of U.P. reported in (2000) 6 SCC 491 wherein the Supreme Court held as here under:
"10. Thus we find that the findings recorded by the Enquiry Officer are totally vitiated for want of any legally acceptable or relevant evidence to support the charges of misconduct. In the absence of any evidence, the Enquiry Officer could not have reached the conclusion in the manner he did, and these findings affirmed by the disciplinary authority also stand vitiated."
23. From the aforesaid discussions, it is difficult to hold that the workman concerned namely the Petitioner No. 2 herein is guilty of any misconduct. The definition of misconduct in Stroud's Judicial Dictionary has been quoted in Union of India and Ors. v. J. Ahmed which Js reproduced herein below,: "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of Judgment, or Innocent mistake, do not constitute such misconduct"
24. In view of Section 11A of the Industrial Disputes Act, the Tribunal now has power to consider whether the punishment of dismissal or discharge was necessary. Under Section 11A, the Tribunal has jurisdiction to consider whether the punishment requires modification even after coming to a conclusion that the departmental enquiry has been conducted by the employer and the finding about misconduct is correct. Accordingly under Section 11(A), the Tribunal is under an obligation to consider whether the punishment imposed is Justified.
25. In the present case, the Enquiry Officer refused to direct the respondent company to bear the expenses of the workman for producing the witnesses from Keonjhar in his defence though, admittedly everything took place at Keonjhar and the vital witnesses for the workman were residents of keonjhar and thereby the principles of natural justice were violated by the Enquiry Officer in conducting the departmental enquiry. The customers of the company at Keonjhar including Arjun Gharan Behra should have been examined as witnesses in order to testify the correctness of the stand taken by the workman concerned.
26. The Enquiry Officer is under an obligation and duty bound to ensure fairness and observance of principles of natural Justice in conducting the domestic enquiry. In the instant case Enquiry Officer failed to observe the principles of natural Justice by refusing the reasonable prayer of the workman concerned for Issuance of a direction upon the company to bear the expenses in order to produce the witnesses from Keonjhar in his defence and thus the workman concerned was wrongfully prevented from representing his case before the Enquiry Officer in an effective manner.
27. It appears from the records that the documents produced by the company were marked as exhibits 1 to 135 with objection by the learned Judge of the Tribunal, as those documents were not legally proved. The witness of the company had no knowledge about the enquiry proceedings or the findings of the Enquiry Officer or about the documents relied upon by the company. Admittedly, the documents filed on behalf of the company were never proved by any witness of the company. Accordingly, the Tribunal should not have considered those documents which were allowed to be filed under objection and were never proved. However, no reason was mentioned in the award as to why those documents were considered by the Tribunal particularly when the said documents were never proved.
28. The documents produced by the company were admittedly never proved but the Tribunal acted on the basis of those documents and passed the award. The learned counsel of the workman submitted that the learned Judge of the Tribunal in one hand relied on the documents submitted by the company even though the same were never proved before the Tribunal and were objected to and on the other hand, documents produced by the workman being 'G' series were never considered by the learned Judge of the Tribunal while passing the award though admittedly the documents of the workman were accepted by the Tribunal without any objection.
29. Furthermore, the Enquiry Officer died before examination and Presenting Officer was neither produced nor examined. Mr. Chadda, who conducted the checking at the Keonjhar Depot, was also not examined. The witnesses in the checking sheet including Mr. Arjun Charan Behara was not examined even though he specifically volunteered to depose before the Enquiry Officer. Excepting Mr. Goutam Prakash Dutta, an Assistant in the -legal and personal department of the company, none else was examined.
30. The departmental enquiry, therefore, was vitiated due to non-observance of the principles of natural Justice by the Enquiry Officer while conducting the enquiry against the workman concerned and decision of the disciplinary authority which affirms the finding of the Enquiry Officer also stands vitiated.
31. The learned Judge of the Tribunal failed to appreciate the aforesaid defects, illegalities and/or Irregularities in the departmental proceedings and erroneously affirmed the decision of the disciplinary authority. Though under Section 11(A) of the Industrial Disputes Act, the learned Judge of the Tribunal should have considered whether the punishment of dismissal or discharge was necessary in the Instant case. The learned Judge of the Tribunal failed properly to appreciate the decisions of the Supreme Court in the case of Workman of F.T & R Co, v. The Management (supra) while deciding the issue as was referred to by the Government of West Bengal in the Instant case. I find no substance in the submissions of Mr. Ghosh as in my opinion, same are devoid of any merit.
32. In the aforesaid circumstances, I have no hesitation to hold that the findings of the Enquiry Officer are perverse and the decision of the Disciplinary Authority dismissing the workman concerned, the Petitioner No. 2, herein, from service on the basis of the said findings of the Enquiry Officer is therefore not sustainable in the eye of law. On the basis of the available materials and the evidence on record no prudent man can come to the conclusion that the charges levelled against the workman have been established in the enquiry proceeding and as such the decision of the learned Judge of the Tribunal is not only erroneous but also a perverse one. Accordingly, the award passed by the learned Judge of the Eighth Industrial Tribunal is erroneous, wrongful and liable to be set aside as the learned Judge of the Tribunal affirmed the decision of the Disciplinary Authority. Therefore, I set aside the award made by the learned Judge of the Eighth Industrial Tribunal and thus allow the writ petition. The respondent company is directed to reinstate the Petitioner No. 2 in service immediately with continuity of service and all consequential benefits Including payment of arrears of salary and other admissible service benefits.
Having regards to the facts and circumstances of this case, there will be, however, no order as to costs.
Let urgent xerox certified copy of this Judgment be given to the learned Advocate for the parties.
Later After pronouncement of the Judgment, the learned Advocate appearing on behalf of the respondents prays for stay of the operation of this Judgment. I find no reason to grant such stay. Accordingly, prayer for stay is refused.