Jharkhand High Court
Management Of Sail vs State Of Jharkhand & Ors on 19 March, 2010
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
WRIT PETITION (L) NO. 3067 OF 2003
The Management of Steel Authority of India Ltd....... Petitioner
Versus
1. The State of Jharkhand
2. Jatadhari Mishra........................ Respondents
......
For the petitioner : Mr. Ananda Sen, Advocate
For the Respondents : Mr. Ajit Kumar Sinha, Advocate
......
PRESENT
The Hon'ble Mr. Justice Amareshwar Sahay
JUDGMENT
C.A.V. on 24/11/2009 Delivered on 19/03/2010
Amareshwar Sahay, J. The writ petitioner, i.e. the Management of Steel Authority of India Limited,
Bokaro Steel Plant has challenged the impugned award dated 18/12/2002, pronounced
on 22/01/2003 by the Labour Court, Bokaro Steel City in Reference Case No. 6/1998,
whereby the Labour Court has held that the termination of the service of Respondent
no. 2 by the petitioner is improper and unjustified and, thereby directed for his
reinstatement with 60% back wages with all other consequential reliefs.
2. In short, the case of the prosecution, are that the respondent no. 2, i.e. the
concerned workman was in the service of the petitioner since 27/01/1983 as a
Gangman in the traffic department. On the allegations that he was an habitual
absentee, he was charge sheeted on 12/04/1991 for remaining unauthorizedly absent
from duty w.e.f. 06/03/1991. The charges levelled against him were for willful or habitual
absence from duties without sufficient cause and negligence of duty but he was let off
after giving warning on 30/04/1991. Thereafter, he was again charge sheeted on
14/10/1993for similar charge, i.e. for willful unauthorized absence but this time he was awarded punishment by bringing him to the minimum of his pay scale by order dated 10/09/1994.
According to the petitioner, in spite of the aforesaid major punishment, the workman did not reform himself and continued absenting unauthorizedly from duty and, as such, he was again charge sheeted on 12/11/1994 vide Annexure-2. An Inquiry Committee was constituted to inquire into the charges against him. It is stated that the concerned workman, i.e. respondent no. 2 participated in the inquiry proceeding and during the proceeding, he accepted the charges levelled against him and he gave in writing to show mercy and assured that he would not repeat such type of misconduct in future. The Inquiry committee found the charges against the respondent no. 2 established vide Annexure-4. The disciplinary authority, on consideration of inquiry report as well as the past conduct of the workman, inflicted penalty of dismissal from service and, accordingly, the concerned workman was dismissed from the service of the petitioner's company vide order dated 02/02/1995, contained in Annexure-5 to the writ petition.
3. The concerned workman raised industrial dispute, which was referred to the Labour Court for determination as to whether the termination of services of the concerned workman by the Management was proper and if not what relief he was entitled to.
The concerned workman appeared and filed his written statement. The Labour Court vide order dated 12/02/2001 held that the domestic inquiry held against the concerned workman was not fair and proper and, thereafter, took evidence. The concerned workman himself appeared as a witness before the Labour Court and on behalf of the Management one witness was examined and, thereafter, by the impugned award dated 18/12/2002, pronounced on 22/01/2003, the Labour Court held the termination of the service of the concerned respondent by the petitioner's company to be improper and unjustified and, thereby, directed to reinstate the concerned workman in service with 60% back wages with all other consequential reliefs.
4. Mr. Ananda Sen, learned counsel appearing for the petitioner submitted that the concerned workman was a habitual absentee and he accepted the misconduct and, therefore, considering his past conduct, there was no other alternative than to dismiss him from service. He further submitted that the Supreme Court in the case of "Chairman & Managing Director, V.S.P. and Others -versus- Gopa Raju Sri Prabhakara Hari Babu, reported in (2008) 5 SCC 569" almost in similar case where the employee was habitual absentee and in answer to the charges pleaded guilty admitting the charges, held that the jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matter is circumscribed by will-known factors. It cannot set aside a well reasoned order only on sympathy or sentiments. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiments, overturn a legal order. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved.
Mr. Sen, by further citing two decisions of the Supreme Court in the cases of "Jagdish Singh- versus- Punjab Engineering College and Others, reported in (2009) 7 SCC 301" and "Managing Director, Balasaheb Desai Sahkari S.K. Limited- versus- Kashinath Ganpati Kambale, reported in (2009) 2 SCC 288", submitted that in case of habitual absentee, the punishment awarded by the management should not be interfered.
5. On the other hand, the case of the concerned workman is that he was appointed by the Management as a displaced person. His dismissal from service of the Management was improper and unjustified in view of the fact that he was not given opportunity to explain the facts and circumstances before the inquiry officer and the inquiry report was also not supplied to him causing serious prejudice. According to the workman, he fell victim of illness of his wife and also of serious depression. He had to remain under active treatment of medical expert w.e.f. 18/10/1994 and his condition aggravated leading to mental disbalance on account of sickness of his wife. The workman emphatically denied that he ever accepted his guilt before the inquiry committee either orally or in writing.
6. From the impugned award, it appears that the Labour Court after considering Clause-37 of the Certified Standing Order laying down the act of misconduct as well as the documents adduced on behalf of the Management to establish the charges against the concerned workman, has held that the action of the Management was in contravention of Clause 38 (ii) (a) of the Certified Standing Order on the ground that Ext.M-3 gave impression that the Management was adamant and predetermined to hold inquiry against the workman even if his explanation would be found satisfactory. The Labour Court further, on consideration of facts and materials on record, held that from Ext. M-5 it did not appear that the concerned workman accepted his guilt of neglect of duty or willful or habitual absence without any sufficient reason before the inquiry committee. In Ext.M-5, the workman stated that since his wife was ailing and, as such, he was absenting from 16/10/1994 and when his wife recovered from sufferings he came to join his service. The Labour Court held that the concerned workman gave sufficient cause for his absence from 16/10/1994 and in Ext. M-5 he did not state a word that in the past also he absented from duties. Considering the above fact the Labour Court held that the domestic inquiry conducted against the concerned workman was perverse and vitiated by non-application of mind.
7. In view of the facts that the Labour Court held that the inquiry was not fair and proper and further it was held by him on the evidence on record that the workman did not accept his guilt and, as such, the decision cited by the learned counsel for the petitioner cannot be made applicable in the facts and circumstances of the present case. In the case before the Supreme Court the workman had pleaded guilty whereas this not the fact here.
8. On consideration of the evidence and materials on record adduced before the Labour Court by both the parties, I find that the Labour Court rightly came to the conclusion that the termination of service of the concerned workman was improper and unjustified.
9. So far as awarding 60% of the back wages is concerned, I find from the impugned award that the Labour Court before awarding 60% back wages has not considered the fact as to whether the concerned workman was gainfully employed during the period he was out of service or not? The workman neither pleaded not established the facts that he was not gainfully employed during the period he was out of service and, therefore, in my view, unless such finding would have been given by the Labour Court on the basis of the evidence on record, he could not have awarded the back wages.
10. Considering the facts and circumstances stated above, I hold that the Labour Court has rightly set aside the dismissal of the concerned workman from service of the petitioner and, thereby, directed for his reinstatement. I do not find any illegality in it. So far as the award of back wages is concerned, for the reasons already stated herein above, I set aside that part of the award awarding 60% back wages in favour of the concerned workman. Consequently, the reinstatement of the concerned workman in service would be without any back wages.
With this modification in award, this writ petition is dismissed. However, there shall be no order as to cost.
(Amareshwar Sahay, J) Jharkhand High Court, Ranchi Dated the 19th March 2010, NAFR/Mukund.