Gauhati High Court
North Eastern Coal Lfields Coal India ... vs Union Of India And Ors on 14 June, 2012
Author: N.Kotiswar Singh
Bench: N.Kotiswar Singh
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM:NAGALAND:MEHGALAYA:MANIPUR:
TRIPURA: MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT
W.P(C) No.10500 of 2003
1. North Eastern Coal Fields Coal India Ltd.,
Black Diamond Towers, G.S.Road, Guwahati.
2. The Chief General Manager, North Eastern Coalfields,
Coal India Limited, Guwahati-5.
... Petitioners
-VERSUS-
1. The Union of India.
2. The Presiding Officer,
Industrial Tribunal, Guwahati.
3. Smt. Sharmila Choudhury
c/o P.K.Ghosh,
8 No.Bye Lane, (Sub Lane-5),
Lachit Nagar, Guwahati-781007.
.... Respondents
BEFORE
THE HON'BLE MR.JUSTICE N.KOTISWAR SINGH
For the petitioners ::
Mr.M.Z.Ahmed, Sr.Advocate
Ms.B.Dutta, Advocate
Mr. A.Hazarika, Advocate
For the respondents :: Mr. A.Dasgupta,Advocate
Mr.S.Chakraborty, Advocate
Date of Hearing :: 26.4.2012
Date of Judgment and order :: 14.6.2012
JUDGMENT AND ORDER (CAV)
Heard Mr. M.Z.Ahmed, learned senior counsel appearing
for the petitioner-company as well as Mr.A.Dasgupta, learned counsel
appearing for the respondent No.3.
[2] This petition has been filed by the North Eastern Coal
Fields Coal India Ltd. challenging the Award dated 8.9.2003 passed
by the learned Presiding Officer, Industrial Tribunal, Guwahati in the
matter of an industrial dispute between the Chief General Manager,
2
North Eastern Coalfields, Coal India Ltd. Guwahati and Smt.Sharmila
Choudhury in Reference Case No.6(c) of 2001. By the said Award
dated 8.9.2003, the learned Presiding Officer, Industrial Tribunal,
Guwahati held that the action of the management of the North Eastern
Coalfields, Coal India Ltd. in stopping the service of the workman,
Smt.Sharmila Choudhury from 20.01.1999 vide their letter dated
19.1.1999 was not justified and accordingly, directed the management
of the North Eastern Coalfields, Coal India Ltd. to allow the said
workman to resume work. The learned Presiding Officer, Industrial
Tribunal, however, made it clear that the workman would get
remuneration from the date of her joining after passing of the award
and would not be entitled to back wages for the period she has not
worked.
[3] The brief facts of the case as narrated by the petitioner-
company is that the workman, Smt.Sharmila Choudhury was initially
employed as a casual typist in the North Eastern Coal Fields under Coal
India Ltd. and was posted at Shillong in the year 1992. Thereafter,
after being interviewed, the said workman was selected for regular
appointment to the post of Typist-cum Clerk subject to terms and
conditions mentioned in the appointment order for a period of six
months from the date of her joining vide order issued by the Deputy
General Manager (CCS), North Eastern Coal Fields on 28.9.1994. On
successful completion of the temporary period of six months, her
service was regularized in the said grade.
[4] According to the petitioner-company, the workman,
impleaded as respondent No.3 in the present writ petition, at the time
of her appointment had submitted her Admit Card and Mark sheet of
Assam Higher Secondary School Examination, but on verification with
the Assam Higher Secondary Education Council, the Controller of
Examination vide their letter dated 21.4.1995 informed that the
aforesaid certificate was a counterfeit one as the records showed the
name of another candidate and not the name of the respondent No.3.
3
[5] Accordingly, on the basis of the aforesaid information,
the respondent No.3 was suspended from duty and a disciplinary
proceeding was initiated against her. Formal charges were framed
against the respondent No.3 and the respondent No.3 submitted her
written statement. The departmental enquiry held that the charges
were proved and by a letter dated 12.2.1998, the Chief General
Manager dismissed the respondent No.3 from the service of the
petitioner-company. Thereafter, the respondent No.3 preferred an
appeal against the dismissal order under Clause 30 of the Standing
Order before the Director-in-Charge, North Eastern Coal Fields, Coal
India Ltd., Calcutta. The appellate authority of the petitioner-company
took a sympathetic view of the matter and since the respondent No.3
had the minimum eligible qualification i.e. HSLC certificate for the post
of clerical Grade-III, the petitioner-company allowed the respondent
No.3 to join her duties afresh to the post of Clerk Grade-III for a
period of six months subject to the condition that her case would be
considered for further order on satisfactory performance during the
aforesaid period. Accordingly, the respondent No.3 was posted at the
N.E.C. Cell, Calcutta vide letter dated 6.7.98. Subsequently, on the
request of the respondent No.3, she was allowed to join at NEC
Guwahati Office at Guwahati.
It is the case of the petitioner-company that during the
aforesaid six months period after fresh appointment as stated above, it
was noticed that the respondent No.3 was a habitual late comer and in
many instances, she signed the Attendance Register after her
attendance had been crossed by the concerned officer as absent
without the knowledge and permission of the officer. She was also
found to be absent without permission from the authorities on various
dates such as 22.10.98, 23.10.98, 27.11.98, 21.12.98, 25.12.98 and
from 1.1.99 to 8.1.99. It has also been stated by the petitioner-
company that the respondent No.3 further committed malpractice by
putting her signatures on 7.1.99 and 8.1.99 when in fact she joined
her duty on 9.1.99 without approval by the concerned officer.
4
[6] According to the petitioner-company, because of the
aforesaid conduct of the respondent No.3, the management had no
option but not to allow her to continue in service w.e.f. 20.1.99 vide its
letter dated No. NEC/GHY/NEE-1/16/99/441 dated 19.1.99.
[7] Accordingly, being aggrieved, the workman/respondent
No.3 raised an Industrial Dispute before Regional Labour
Commissioner (Central) and a conciliation proceeding was initiated.
Before the said conciliation proceeding, the petitioner-company stated
that the management of the petitioner-company took a decision to
restrain the respondent No.3 from working for specific misconduct
committed by the respondent No.3, that she was a habitual late
comer, that she used to illegally sign the Attendance Register after her
attendance had been crossed by the concerned officer as absent, that
she was found absent from duties without permission on various
dates.
The said conciliation proceeding ended in failure and the
matter was referred to the Central Government. The Central
Government was of the view that the action of the petitioner-company
in stopping the work of the respondent No.3 for the aforesaid
misconduct amounts to an industrial dispute, which requires
adjudication by a competent Court. Accordingly, the dispute was
referred to Industrial Tribunal, Guwahati to adjudicate as to whether
the petitioner-company was justified in stopping the work of the
respondent No.3 with effect from 20.1.99 for the aforesaid
misconduct.
[8] The learned Presiding Officer, Industrial Tribunal did not
accept the contention of the petitioner-company that the conduct of
the respondent No.3 was not satisfactory and held that the
management was not justified in stopping the work of the workman.
Accordingly, the petitioner-company was directed to allow her to work
as stated above.
5
[9] The case of the petitioner-company before the learned
Presiding Officer, Industrial Tribunal, Guwahati was that when it was
discovered that the workman/respondent No.3 had produced a false
certificate, a disciplinary proceeding was initiated against her and
based on the findings of the disciplinary proceeding, she was
dismissed from service. However, on sympathetic consideration of the
case of the respondent No.3, the appellate authority appointed her
afresh to work with the condition that her case will be considered after
six months. Since after fresh appointment, the workman/respondent
No.3 had not been discharging her duties satisfactorily and she was
found to be a habitual absentee and also a late comer and also
indulged in other misconducts of manipulating the Attendance Register
as stated above, her service was discontinued.
[10] On behalf of petitioner-company, one S.B.Dasgupta was
examined as the sole witness and the workman also examined herself
only. In support of the contention of the petitioner-company that the
respondent No.3 had tampered with the Attendance Register, the
management produced four Attendance Registers. The petitioner-
company also raised the issue of alleged forgery of the educational
qualification as mentioned above.
[11] The case of the workman/respondent No.3 before the
learned Industrial Tribunal was that she was regularly appointed in the
year 1995 and though her service was terminated on the basis of a
departmental enquiry, which was falsely hoisted against her, and on
appeal, she was reinstated to service by the order passed by the
appellate authority on 24.6.98. The respondent No.3 resumed service
w.e.f. 9.8.98 on the condition that she would not claim back wages.
However, by the order dated 19.1.1999, the respondent No.3 was
directed by the management that the service of the respondent No.3 is
stopped w.e.f. 20.1.1999 until further orders. According to the
respondent No.3, the aforesaid order is illegal inasmuch as the service
of the respondent No.3 has not been terminated.
6
According to her, no enquiry was conducted against her
on the allegation made by the Management and also that no notice
was given to her. She also denied the allegations made against her of
producing false mark sheet and Admit Card. She also denied that she
had signed in the attendance register after it was marked absent
against her name.
[12] The learned Presiding Officer, Industrial Tribunal, on
consideration of the rival contentions held that the plea of the
management that the respondent No.3 tampered with the Attendance
Register has not been proved. It was also observed that no
handwriting expert was produced to prove the aforesaid alleged
tampering of the Attendance Register. The learned Presiding Officer,
Industrial Tribunal also rejected the contention of the management
that the education qualification of the workman/respondent No.3 had
been forged and also did not accept the contention of the
management that the conduct of the workman is not satisfactory.
The learned Presiding Officer, Industrial Tribunal also
rejected the contention of the management that the respondent No.3
is not a workman. Accordingly, the learned Presiding Officer, Industrial
Tribunal passed the Award dated 8.9.2003 rejecting the contentions of
the management and directed the management to allow the
respondent No.3 to work as stated above.
[13] In the present petition, the management is challenging
the findings of the award made by the Presiding Officer, Industrial
Tribunal on the following grounds:-
[i] the workman/respondent No.3 had presented a totally
distorted picture before the learned Industrial Tribunal by stating that
she did not submit any false certificate, which is totally false and
misleading inasmuch as the Controller of Examination, Assam Higher
Secondary Education Council, had already intimated that the mark
sheet Sl.No.113902 as a counterfeit document and the candidate who
appeared under the said roll number in the said examination is one
Pranita Deka and not Sharmila Choudhury, the respondent No.3 and
7
asked the authority to report the matter to the police. However, the
appellate authority of the management taking a considerate view did
not report the matter to the police and reappointed the respondent
No.3 on the condition that further order will be passed after
satisfactory performance after six months.
[ii] Secondly, it has also been contended that the learned
Industrial Tribunal had failed to appreciate the contention that the
respondent No.3 was a habitual late comer and an absentee, which is
clearly evident from the Attendance Register produced by them. It has
been also contended that since there was overwriting and tampering
of the Attendance Register, if at all the learned Industrial Tribunal had
any doubt, the learned Industrial Tribunal ought to have referred the
Attendance Register for examination by any handwriting expert rather
than giving the benefit of doubt to the workman. It was contended
that the learned Industrial Tribunal ought not to have ignored the
documentary evidence produced by the management to show that the
performance of the respondent No.3 was unsatisfactory.
[iii] Thirdly, it was also contended that the respondent No.3
was not a workman as defined under the Industrial Disputes Act,
inasmuch as she failed to actually continuously work under the
petitioner-company for a minimum period of 240 days as required
under Section 25B of the Industrial Disputes Act after her fresh
appointment.
[14] This Court has considered the rival contentions of the
parties and gone through the records of the case produced before this
Court.
We will deal with the last contention of the petitioner-
company at the outset.
The contention of the petitioner-company that the
respondent No.3 is not a workman under the Industrial Disputes Act
inasmuch as she has not worked continuously for at least 240 days is
not tenable as there is no such condition attached to the definition of
"workman" under the Industrial Disputes Act. Section 2(s) defines
workman as under:-
8
(s) "workman" means any person(including an
apprentice) employed in any industry to do any manual,
unskilled, skilled, technical, operational, clerical or
supervisory work for hire or reward, whether the terms
of employment be express or implied, and for the
purposes of any proceeding under this Act in relation to
an industrial dispute, includes any such person who has
been dismissed, discharged or retrenched in connection
with, or as s consequence of, that dispute, or whose
dismissal, discharge or retrenchment has led to that
dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1960 (45 of
1950), or the Army Act, 1950 (46 of 1950), or the
Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an
officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or
administrative capacity; or
(iv) who, being employed in a supervisory
capacity, draws wages exceeding(ten) thousand
rupees) per mensem or exercises, either by the
nature of the duties attached to the office or by
reason of the powers vested in him, functions
mainly of a managerial nature.]
The condition mentioned in Section 25B of the Industrial
Disputes Act is only for the purpose of Chapter VA of the Act dealing
with lay-off and retrenchment. It was the specific case of the
petitioner-company that the case of the respondent workman did not
come within the ambit of Section 25F read with Section 25B of the
Industrial Disputes Act.
Further, the status of "workman" is not dependent upon
the length of service, as is evident from the definition of "workman"
under the Act. As such, the contention of the petitioner-company can
not be accepted.
[15] We will now deal with the other contentious issues.
[16] There is a considerable dispute as to whether the
aforesaid rejoining in service of the respondent No.3 was a fresh
appointment as contended by the management of the petitioner-
company or mere reinstatement in service as contended by the
respondent No.3. Without going into the aforesaid disputed issue, we
may refer to some undisputed facts.
9
The fact remains that the respondent No.3 was allowed
to join as a Clerk-Grade-III vide order dated 6.7.98 whereby it was
stated that the competent authority of the petitioner-company was
pleased to allow the respondent No.3 to join as Clerk Grade-III for a
period of six months and only on satisfactory performance during this
period, the case of the respondent No.3 will be considered for further
orders. The said order also stated that before joining duty, respondent
No.3 is to furnish an undertaking to the effect that she will not claim
back wages or any other reliefs.
[17] Without going into the controversy whether the aforesaid
order was a fresh appointment or a mere reinstatement, this Court is
of the opinion that the present issue can be examined on the basis of
the orders passed by the petitioner-company pursuant to the said
order dated 6.7.1998. The order dated 19.1.99 by which it was stated
that the service of the respondent No.3 is stopped w.e.f. 20.1.99 until
further orders is somewhat vague. If, the contention of the petitioner-
company that the aforesaid order directing stoppage of the service of
the respondent No.3 was because of the unsatisfactory service
rendered by the respondent No.3 during the six months and her
service being no more required, is to be accepted, then, there is no
reason to add the words "till further orders" in the impugned order.
This stoppage of work, according to the Management, was not meant
to be of temporary but of permanent nature. Therefore, this impugned
order suffers from the vice of vagueness.
The learned counsel appearing for the respondent No.3
also has contended that the aforesaid order dated 19.1.99 stopping
the service of the respondent No.3 w.e.f. 20.1.1999, though seemingly
a termination simplicitor, is not really so, inasmuch as the aforesaid
order dated 19.1.1999 was passed by way of punishment of the
respondent No.3 for the alleged misconduct of habitual abstention,
tampering of Attendance Register and also of submitting forged
certificate which have been the reasons for discontinuation of the
service of the respondent No.3, as clearly stated by the petitioner-
company before the learned Industrial Tribunal. Therefore, the
10
allegations that the respondent No.3 was a habitual late comer, she
had manipulated the Attendance Register as well as submitted forged
certificate were indeed the basis or the foundation for the passing of
the aforesaid order dated 19.1.1999. Accordingly, the Respondent
No.3 contends that the aforesaid order dated 19.1.1999 is liable to be
set aside. The learned counsel submitted that by lifting the veil of the
apparently innocuous order of stopping the service of the respondent
No.3, the real reasons and foundations of the stopping the service of
the respondent No.3 could be clearly found. Accordingly, he submits
that since the impugned order was issued without giving any notice,
the same is liable to be set aside.
The learned counsel for the petitioner on the other hand
submits that the service of the Respondent No.3 was terminated in
terms of the appointment letter dated 6.7.1998 in which it was clearly
mentioned that her service would be considered on satisfactory
performance of her duties during the six months period. Accordingly,
the learned counsel submits that there is no illegality in issuing the
impugned order and has relied on the judgment of the Hon'ble
Supreme Court in "Vidyavardhaka Sangha and Anr. vs.
Y.D.Deshpande and others", (2006) 12 SCC 482 to buttress his
argument, in which the Hon'ble Supreme Court held that;
"4. It is now well-settled principle of law that the
appointment made on probation/ad-hoc basis for a
specific period of time comes to an end by efflux of time
and the person holding such post can have no right to
continue on the post. In the instant case as noticed
above, the respective respondents have accepted the
appointment including the terms and conditions
stipulated in the appointment orders and joined the posts
in question and continued on the said posts for some
years. The respondents having accepted the terms and
conditions stipulated in the appointment order and
allowed the period for which they were appointed to
have been elapsed by efflux of time, they are not now
permitted to turn their back and say that their
appointments could not be terminated on the basis of
their appointment letters nor they could be treated as
temporary employees or on contract basis. The
submission made by the learned counsel for the
respondents to the said effect has no merit and is,
therefore, liable to be rejected. It is also well-settled law
by several other decisions of this Court that appointment
11
on ad hoc basis/temporary basis comes to an end by
efflux of time and persons holding such post have no
right to continue on the post and ask for regularization,
etc."
Accordingly, the learned counsel submits that the
Respondent No.3 was not entitled to any notice as the termination was
in terms of the appointment order.
Likening the status of the Respondent No.3 to that of a
casual/badli worker, the learned counsel relying on "Karnataka State
Road Transport Corporation & Anr. vs. S.G.Kotturappa & anr.",
(2005) 3 SCC 409, submits that the service of the Respondent No.3
can be dispensed with, if for any reasons she was not found suitable
for the job for which her service was utilized. Further, a dispute as
regards purported wrongful termination of service can be raised only if
such termination takes place in violation of mandatory provisions of
the statute governing the services.
In the present case, the learned counsel for the
petitioner submits that no such mandatory provision of the statute has
been violated and the service of the Respondent No.3 was
discontinued as she was not found suitable for the job.
[18] It was also contended by the learned counsel appearing
for the respondent No.3 that the onus was on the petitioner-company
to prove that the Attendance Register was tampered with by the
respondent No.3 and therefore, on the failure on the part of the
management of the North Eastern Coalfields, Coal India Ltd. to
produce the necessary evidence and witnesses to prove the aforesaid
allegation of tampering of Attendance Register, the finding of the
learned Tribunal cannot be faulted with. In fact, the person in whose
custody the Attendance Register was supposed to be, was not even
examined. Only one officer, namely, S.Dasgupta, who was Deputy
Personnel Manager and who was not the custodian of the aforesaid
Attendance Register was examined and as such, the aforesaid
allegations that the respondent No.3 had tampered with the
Attendance Register is not proved.
12
The learned counsel for the petitioner on the other hand,
submitted that the Industrial Tribunal was not entitled to go into the
merits about the various allegations and proof thereof.
The learned counsel appearing for the respondent No.3
however submitted that the Award dated 8.9.2003 passed by the
learned Industrial Tribunal does not suffer from any irregularity or
illegality
The learned counsel appearing for the respondent No.3
has relied on the judgments rendered by the Hon'ble Supreme Court
reported in the case of General Manager, Oil & Natural Gas
Commission, Silchar vs. Oil and Natural Gas Commission
Contractual Workers Union, (2008) 12 SCC 275 stating that in
absence of any perversity and patent illegality in the award made by
the learned Industrial Tribunal, High Court has no jurisdiction to
interfere with the findings of the award made by the learned Industrial
Tribunal.
Referring to the judgments of the Hon'ble Supreme Court
rendered in Dipti Prakash Banerjee vs. Satyendra Nath Bose
National Centre for Basic Sciences, Calcutta & ors.; (1999) 3
SCC 60 as well as V.P.Ahuja vs. State of Punjab & ors. ; (2000)
3 SCC 239, the learned counsel appearing for the respondent No.3
has also contended that even if assuming that the appointment of the
respondent No.3 was a fresh one and she was placed under probation,
her service could not have been terminated in the manner it had been
done without complying with the principles of natural justice inasmuch
as the aforesaid order dated 19.1.1999 stopping the service of the
respondent No.3 was by way of punishment.
[19] As can be seen from the records, it is the specific case
of the petitioner-company that it was noticed that during the period of
six months after the respondent No.3 had joined her duties afresh, (1)
she was a habitual late comer, (2) she had tampered with the
Attendance Register and (3) she had submitted a forged certificate.
Because of the aforesaid acts of the respondent No.3, the
Management had no other option but to disallow her to continue in
13
service, more so, as her case did not come within the ambit of Section
25F read with Section 25B of the Industrial Disputes Act.
[20] This Court also has noted that one of the reasons as
stated above for discontinuation of the service of the respondent No.3
was the alleged act of the respondent No.3 in submitting forged
certificate. The petitioner-company had already taken a punitive action
against the respondent No.3 by dismissing her service on the basis of
a departmental proceeding regarding the aforesaid alleged act of
submission of the forged certificate. Therefore, after the respondent
No.3 was reinstated in service by the order of the appellate authority,
this Court is of the opinion that the aforesaid alleged misconduct of the
respondent No.3 could not be used again for taking action against the
respondent No.3 as has been sought to be done by order dated
19.1.1999. Further, the aforesaid alleged misconduct was committed
prior to the issue of the appointment order dated 6.7.1998. The period
of the aforesaid alleged misconduct does not fall within the six months
period after the said appointment order dated 6.7.1998. Therefore, the
Management could not have referred to the aforesaid alleged
misconduct to assess her work during the said six months period.
Therefore, invoking the alleged past misconduct to judge the suitability
of the Respondent No.3 after she was re-appointed can not be said to
be appropriate.
This Court has also observed that as regards the
allegation of tampering of Attendance Register, the respondent No.3
had clearly denied in her written statement before the learned
Industrial Tribunal. In view of the aforesaid specific denial by the
respondent No.3, onus was on the management of the North Eastern
Coalfields, Coal India Ltd. to prove that the Attendance Register had
indeed been tampered with and manipulated by the respondent No.3.
The Management did not produce any witness who had direct
knowledge of the alleged tampering of Attendance Register by the
Respondent No.3. This Court also perused the Attendance Register. It
can not be ascertained without the relevant witnesses whether the
Attendance Register was manipulated by the Respondent No.3 or not.
14
It can not be said with certainty whether the cross mark was placed
after the Respondent No.3 had already put her signature or vice-versa.
The failure by the Management to produce the witness who had
custody of the Attendance Register or knowledge about the alleged
manipulation weakens their case. It is to be also noted that the
Management had not also stated how they had come to a conclusion
that the Attendance Register was manipulated by the Respondent No.3
so as to make an assessment of the suitability of the Respondent No.3
on the basis of such an act. Assessment of suitability must be based
on certain verifiable facts and not merely on suspicious, otherwise, it
can lead to serious abuse of power. Therefore, the finding of the
learned Industrial Tribunal that the allegation of the petitioner-
company that the Attendance Register was tampered with by the
respondent No.3 is not proved, cannot be faulted with. The said
finding also can not be said to be perverse.
[21] There is yet another disturbing aspect of the matter. On
perusal of the records produced, it is seen that the Management had
apparently stopped the work of the Respondent No.3 on the basis of
the letter dated 19.01.1999. However, the Management also produced
a document which was exhibited as Exhibit "N" before the learned
Industrial Tribunal, bearing No.NEC/GHY/16/99/380 dated 21.1.1999,
which is reproduced herein below:-
"NEC/GHY/16/99/380 Date: 21-01-99
Smt. Sharmila Choudhury, Clerk Grade-III was appointed
vide Office Order No.NEC/GHY/DGM/1250 dt. 29-09-94 as
Typist/Clerk Grade-III. As per terms of appointment she
was appointed for a period of Six months and on successful
completion she was to be regularized in grade-III. On
verification of Certificates from Assam Board; it is found
that the Higher Secondary School Certificate submitted by
Smt. Sharmila Choudhury were false. Accordingly, she was
Chargesheeted and an enquiry was conducted where it was
proved that the Higher Secondary Certificate submitted by
Smt. Sharmila Choudhury were false. Accordingly she was
dismissed from service w.e.f. 12.2.98.
Smt. Sharmila Choudhury submitted a petition for
reconsideration of her case. The Competent Authority
considered the matter and allowed her join afresh for a
15
period of Six months and ordered to keep watch on her
performance and there after, case may be put up for further
orders.
Vide letter No. NEC/NEE-1/16/98/236 dt. 6.7.98 Smt.
Sharmila Choudhury was allowed to join as Clerk Grade-III
for a period of Six months. Smt.Choudhury joined on
10.07.98.
During this period from 10.07.98 till date it has been
observed that Smt. Sharmila Choudhury is a habitual late
comer which is proved from the attendance register. Further
it has been also be found that she in the habit of signing
the attendance register after her attendance has been
crossed by the Officer concerned without any knowledge or
permission from the Officer concerned. She has also found
to be absent on the following dates.
From 22.10.98 to 23.10.98
19.11.98 & 27.11.98
21.12.98 & 25.12.98
From 01.01.99 to 08.01.99
It is also found that although she was absenting from 1.1.99
to 8.1.99, she has put signature on 7th and 8th Jan' after
coming to office on 9th without the concerned Officer's
approval.
The above indicates very clearly that she is not serious
about her job and her habitual late coming and signing the
attendance register on the dates of absence is submersive
to discipline and sets a bad example to other employees.
In view of the above Competent Authority may like to
decide please.
Sd/-
21.01.99
Dy. PM (P & A)
CGM
DIC "
From the aforesaid document, what transpires is that
there was proposal from the Dy.PM(P&A) to the higher authority, i.e.
CGM on 21.1.1999 for taking necessary decision with regard to the
Respondent No.3 on the basis of the alleged irregularities as
mentioned above. The production of this document dated 21.1.1999
has laid bare the intentions of the Management. While this document
16
purports to contain the reason for issuing the order of stoppage of
work dated 19.1.1999, the order for stoppage of work precedes the
document. In normal course, the order of stoppage of work should
have followed the consideration of the performance of the work of the
Respondent No.3 by the authorities. However, this document which
reflects the assessment of the performance of the Respondent No.3 is
subsequent to the order of stoppage of work issued on 19.1.1999.
This clearly reveals that the order of stoppage of work of
the Respondent No.3 was issued without proper assessment of the
work of the Respondent No.3. What the document dated 21.1.1999
reflects is that the assessment of the work of the Respondent No.3
was done after the order of stoppage of work of the Respondent No.3
was issued which is not permissible in law. If this document is to be
believed to be genuine, it ought to have preceded the order of
stoppage of work.
Accordingly, this Court is of the view that the action of
the Management in issuing the order dated 19.1.1999 was arbitrary
and without proper application of mind and the said document dated
21.1.1999 was an afterthought.
[22] Coming to the not so simple issue whether the stoppage
order was a "termination simplicitor" or "punitive", the learned counsel
for the Respondent No.3 has urged that the impugned order dated
19.1.1999 was issued by way of punishment and has relied upon
several judgments of the Hon'ble Supreme Court as mentioned above.
It is now more or less well settled that to ascertain
whether any action of termination amounts to punitive or simplicitor
would depend as to whether the allegations against the employee
were the "foundation" or "motive" for the termination.
The Hon'ble Supreme Court in Dipti Prakash Banerjee
(supra) after a review and discussion of related law held that,
"21. If findings were arrived at in an enquiry as to
misconduct, behind the back of the officer or without a
regular departmental enquiry, the simple order of
termination is to be treated as "founded" on the
allegations and will be bad. But if the enquiry was not
held, no findings were arrived at and the employer was
17
not inclined to conduct an enquiry but, at the same time,
he did not want to continue the employee against whom
there were complaints, it would only be a case of motive
and the order would not be bad. Similar is the position if
the employer did not want to enquire into the truth of
the allegations because of delay in regular departmental
proceedings or he was doubtful about securing adequate
evidence. In such a circumstance, the allegations would
be a motive and not the foundation and the simple order
of termination would be valid."
However, as we proceed further, it may be apposite to
refer to a very important aspect highlighted by the Hon'ble Supreme
Court in Chandra Prakash Sahi vs. State of U.P. and ors. reported
in (2000) 5 SCC 152 wherein the Hon'ble Supreme Court referring to
its earlier decision in Ravindra Kumar Misra v. U.P.State
Handloom Corpn. Ltd. , 1987 Supp SCC 739, observed that,
"24.......................................................................................
............... in the relationship of master and servant there
is a moral obligation to act fairly. Therefore should be an
assessment of the work of the employee and if any
defect is noted in his working, the employee should be
made aware of the defect in his work and deficiency in
his performance. Defects or deficiency, indifference or
indiscretion may be with the employee by inadvertence
and not by incapacity to work. Timely communication of
the assessment of work in such cases may put the
employee on the right track. Without any such
communication, it was observed, it would be arbitrary to
give a movement order to the employee on the ground
of unsuitability."
The Hon'ble Supreme Court was thus of the view that if
there be any deficiency in the service of the employees, the employee
ought to have been notified of such deficiency and the employee
ought not to be given marching order abruptly.
In the present case, it is revealed from the records that
the Respondent No.3 was not given any warning about the alleged
absence from work. Shri S.Dasgupta, who was examined on behalf of
the Management had stated before the Industrial Tribunal that he did
not warn the Respondent No.3 for her frequent absence by letter.
18
[23] In the instant case, the records do not reveal that any
enquiry had been conducted against the respondent No.3 before the
impugned order was issued, thus it may seem that the allegation
would be a motive and not the foundation. Yet, there is a very
important aspect which has engaged the mind of the Court. Though
the Management contends that the service of the respondent No.3 was
stopped as her service was found to be unsatisfactory, yet, the
Management makes a very categorical statement that the aforesaid
stoppage of work was resorted to because of specific misconduct
committed by the respondent No.3.
[24] In this regard, it may be appropriate to refer to
paragraphs No.8, 9 and 10 of the petition, which are reproduced
hereinbelow:-
"8. That during the relevant period of six months
after the respondent No.3 had again joined her duties
afresh under condition of satisfactory performance during
the aforesaid period, then only, her case to be
considered for further orders, it was noticed that the
Respondent was a habitual late comer, as it would be
evident from the Attendance Register. Moreover, in many
instances, the Respondent had the audacity to sign the
Attendance Register after her attendance had been
crossed by the concerned Officer as absent, without his
knowledge or permission. Inspite of that the Respondent
No.3 was found to be absent from her duties without any
permission from the competent Authority on various
dates such as 22.10.98, 23.10.98, 27.11.98, 21.12.98,
25.12.98 and from 1.1.99 to 8.1.99. The Respondent
No.3 further committed mal practice by putting her
signatures on 7th and 8th January, 1999, when in fact she
had joined her duties only on 9th January, 1999, without
the approval of the concerned Officer.
9. That the Order allowing the Respondent to join as
Clerk Grade-III, clearly stipulated that in the even the
Workman's performance and conduct was found
unsatisfactory during the aforesaid period of six months,
the Workman's case would be considered for further
orders. The Respondent had repeatedly absented from
duties without prior permission and as she had become a
habitual late comer, the Management had no other
option but to disallow her to continue in service with
effect from 20.1.99 by its letter No.NEC/GHY/NEE-
1/16/99/441 dated 19.1.99, more so, as her case did not
come within the ambit of Section 25.F read with Section
19
25.B of the Industrial Disputes Act. The Respondent
cannot be deemed to be a workman for any purpose,
more particularly in the instant case.
10. That, an Industrial Dispute was raised by the
Respondent No.3 before Regional Labour Commissioner
(Central) and a conciliation proceeding was initiated. In
the conciliation proceeding both the sides had filed their
written representations wherein the petitioners stand
regarding their action restraining the Respondent No.3
from working, was for a specific misconduct committed
by the Respondent No.3, and that she was a habitual late
comer, and she used to illegally sign the Attendance
Register after her attendance had been crossed by the
concerned Officer as absent, she was found absent from
duties without permission on various dates and as such
the conciliation proceeding ended in failure and the
matter was referred to the Central Government
.............................................................................................
........................" (emphasis added) [25] The Hon'ble Supreme Court in the said case of Chandra Prakash Sahi (supra) has also observed that, whether the order by which the service is terminated was innocuous or punitive had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances.
[26] It is the plea of the petitioner-company at every stage/level of proceedings, before the conciliation proceeding, the Industrial Tribunal as well as before this Court that the stoppage of the work of the Respondent No.3 was because of her misconducts. It is, therefore, very obvious that even though nothing is mentioned about the reasons for the stoppage of work in the order dated 19.1.1999, the Management has made it very clear and obvious that the service of the Respondent No.3 was stopped because of the aforesaid alleged misconducts. The intention of the Management to discontinue the service of the Respondent No.3 because of the alleged misconduct is also amply demonstrated by the fact that they also referred to the past deed of alleged act of forgery by the Respondent No.3. Therefore, considering all these aspects, this Court is of the view that the aforesaid alleged misconducts of the Respondent No.3 were indeed the foundation for passing the order dated 19.1.1999 and not mere 20 "motives" and accordingly, the said order could not have been passed without giving show cause notice to the respondent No.3.
[27] This Court, after having considered the facts and attending circumstances as discussed above, is of the view that the order dated 19.1.1999 stopping the work of the Respondent No.3 suffers from the vice of vagueness and arbitrariness. Further, the Management has not acted fairly while issuing the said order stopping the work. This Court is also of the view that the alleged misconducts of the Respondent No.3 were the foundation of the said order dated 19.1.1999. For the reasons and discussions as stated above, this Court concurs with conclusion of the Industrial Tribunal and no case has been made out to interfere with the finding and conclusion of the learned Industrial Tribunal and accordingly, the present petition is dismissed as devoid of merit.
JUDGE FR/NFR Opendro(rt)