Calcutta High Court
Sital Chandra Ganguly vs Ninth Industrial Tribunal And Ors. on 18 June, 2003
Equivalent citations: [2004(101)FLR294], (2004)IILLJ522CAL
Author: Dilip Kumar Seth
Bench: Dilip Kumar Seth
JUDGMENT Dilip Kumar Seth, J.
1. The service of the workman was terminated under Clause 30 of the Standing Orders applicable to the employee. The competent authority had recorded its reasons that it had lost confidence in the workman. The fact discloses that on information the Police raided his house. By reason of having an inkling of this raid, the workman had fled from his house. While fleeing, he was intercepted and a billet allegedly manufactured by the employer company was recovered from the suitcase carried in the Rickshaw in which he was travelling. The workman had attempted to justify that the suitcase belonged to one Sri Chakraborty, a Fitter of the Company, who was accompanying him and just had gone to answer the call of nature. But the learned Tribunal did not believe the same. Evidence was adduced before the learned Tribunal. The learned Tribunal had considered the same and had come to a finding that there was justification in the reasons given for dispensing with the enquiry and terminating the service of the workman.
2. Mr. Bose had pointed out that the learned single Judge had not considered the finding arrived at by the learned Tribunal in the award and had overlooked the perversity in it. He had pointed out that there was no finding with regard to the fact that the enquiry was not reasonably practicable or would be counter-productive. On the other hand, it had tried to find out the nexus between the incident and the allegations made by the employer. But the fact remains that the billet was never identified and there was no material to show that the recovered goods belonged to the employer. He also pointed out that the Police had initiated an enquiry in which a final report was submitted. In the final report, it was pointed out that no nexus could be established with regard to the billet and the worker. Mr. Bose wanted to make capital out of this finding and the discharge of the workman by the final report.
3. Mr. Arunabha Ghosh, learned counsel for the employer, points out that the absence of reasons as to the reasonable practicability or counter-productivity of the enquiry would not affect the finding of the learned Tribunal when the learned Tribunal had, independent of the finding of the employer arrived at a clear finding with regard to the allegations made by the employer as against the workman. According to him, even, if no enquiry is held by the employer, the employer is at liberty to prove the allegations before the learned Tribunal, which has since been done in the present case. The parties had led evidence on the basis whereof the learned Tribunal had come to a finding of fact. Therefore, this Court cannot interfere with the said finding of fact. He had relied upon the decision in the case of Workmen of Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory Private Ltd. to substantiate his above contention.
4. On the other hand Mr. Bose had attempted to rely on the decision in Workmen of Hindustan Steel Ltd. and Anr. v. Hindustan Steel Ltd. and Ors. and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. .
5. We have heard the learned counsel for the respective parties. Admittedly, the writ petition arose out of an award passed by the learned Tribunal. This appeal has been preferred against the judgment and order passed in the writ application challenging the said award. The learned single Judge had found that the learned Tribunal had come to a finding of fact, which is not perverse and, therefore, Writ Court cannot interfere with the same. In such a background, the scope of this appeal would be limited to whether the Writ Court can interfere with regard to the finding of fact. Admittedly, the proposition of law cannot be applied without the basis of facts. The proposition as advanced by Mr. Bose is a settled proposition of law and, at the same time, the proposition advanced by Mr. Ghosh is again a settled proposition of law. But it is to be examined whether these propositions can be applied in given facts. Therefore, we may also examine the facts to the extent a Writ Court can examine the same, namely, as to whether the finding is perverse.
6. Mr. Bose invited us to find out as to whether justifiable reasons have been given by the employer in terminating the service of the workman without enquiry as appreciated by the learned Tribunal. Inasmuch as referring to the decision in Hindustan Steel Ltd. (supra), he pointed out that there is no finding by the employer that the enquiry was not reasonably practicable or that it would have been counter-productive and as such, the learned Tribunal had misdirected itself. True, this was one of the aspects, which the learned Tribunal ought to have considered while examining the order regarding reasons for dispensing with enquiry. In fact, even if a person is caught red handed, still then, an enquiry has to ensue, in order to impose upon him a penalty as is contemplated in the Standing Order itself. Rule 30 of the Standing Orders of the employer is an exception to this general rule of giving opportunity before imposing penalty. But this must be guided by some restrictions preventing arbitrary exercise of such authority. In Hindustan Steel Ltd. (supra), the Apex Court had dealt with similar provisions and had observed that the restrictions imposed under Article 311(2) of the Constitution of India should be read in such provision and that the reasons should justify that holding of enquiry was reasonably impracticable or counter-productive. Without such finding, enquiry cannot be dispensed with. In fact, the learned Tribunal has not endeavoured to find out any such material from the reasons recorded. Neither the employer had made out any such case.
7. Imposing of penalty has an adverse impact in the service of an employee. It hits at his livelihood and right to work recognised by various decisions of the Apex Court. Principles of audi alteram partem require giving an opportunity before any adverse order visits the employee. The Standing Order provides for holding of an enquiry and the manner in which it has to be held. No one can be punished without an enquiry. But there are some exceptions. The Standing Order sometimes provides for imposition of penalty dispensing with enquiry. But these are exceptional cases. These are to be applied sparingly. The provision for dispensing with enquiry is a power, which is wide open to arbitrariness. It is uncanalised and unguided. It is capable of being misused. If a power can be exercised with impunity capable of being extremely arbitrary, if it is uncanalised and unguided, it can be put to arbitrary use. The principle of enquiry requires some restrictions and guidelines to be implicit in such provision having regard to the provisions of the Standing Order providing for enquiry and its procedure for giving opportunity before passing any order adverse to an employee. This principle cannot be flouted. This principle has to be adhered to. Such provision must contain some guidelines to guard against arbitrary exercise of the power.
8. We can find the principle in Article 311(2) of the Constitution of India. In Hindustan Steel Ltd. (supra), this principle came up for consideration. The Apex Court had observed that a provision without these guidelines or restrictions are to be recasted providing for guidelines or restrictions similar to the provision provided for in Article 311(2) of the Constitution. The enquiry can be dispensed with in exceptional cases. Such device can be adopted sparingly: The cases in which it can be applied are those where holding of enquiry is reasonably impracticable or where holding of enquiry would be counterproductive. In such circumstances, reasons are to be recorded in writing that the enquiry is reasonably impracticable or would be counterproductive. These reasons must justify the conclusion for dispensing with the enquiry.
9. Such a finding is always open to scrutiny or review judicially. This can be questioned when brought to the learned Labour Court or to the learned Tribunal or before this Court in writ jurisdiction or in appeal arising thereout. When faced with such a question, it is the duty of the Court to examine whether the reasons recorded justify the conclusion not to hold the enquiry. However, the Court cannot enter into the question of sufficiency or adequacy or justifiability of the reasons. The Court has only to examine as to whether there are reasons to justify the decision. In examining such reasons, the Court has to find out whether the reasons given have reasonable nexus with the allegations made and that there are some grounds, which justify dispensing with the enquiry.
10. In this case, the learned Tribunal had proceeded to examine the same and had found justification of the decision. But having gone through the reasoning given, it seems that the learned Tribunal has stretched itself to a little extent beyond the scope of its limit within which it could examine the reasons. In fact, it had dealt with the question of the sufficiency or adequacy of the reasons and that too on the basis of its own views or opinions, which it could not have expressed. In fact, in the order of termination, nothing was recorded except borrowing the expressions used in Clause 30. The employer did not produce any material before the learned Tribunal to substantiate the reason justifying dispensing with the enquiry. The learned Tribunal also did neither find nor come to any conclusion with regard to any reasons justifying dispensing with enquiry.
11. But then as contended by Mr. Ghosh, if we take these reasons to be a finding with regard to the fact relating to the allegations made against the employee on the basis of the materials produced before the learned Tribunal and the evidence adduced by the respective parties, the question would be different. In as much as, in such a case, it has to be examined whether the learned Tribunal had come to an independent finding with regard to the truth of the allegations made against the workman and had found him guilty of the charges levelled against him on the basis of the materials placed before it. It is always open to the employer to prove the allegations before the learned Tribunal independent of its decision for dispensing with an enquiry. In such a case, the Court can examine the materials and come to its own independent finding irrespective of the decision of the employer to dispense with the enquiry. In that event, it would afford an opportunity to the employee to defend the allegations. Then it would remove the defect that emanate from the principle of audi alteram partem.
12. Therefore, we may now examine the contention of Mr. Ghosh with regard to the proof of the allegations before the learned Tribunal and its finding. In such a case, it is open to the Court to examine as to whether the finding is perverse and nothing else than that. The Court cannot weigh the evidence, nor it can examine as to the sufficiency or adequacy of the evidence. The only question that is to be looked into is whether a reasonable person can come to the conclusion having regard to the materials available. In other words, it is only the perversity in the finding, which would lead this Court to exercise its discretion to intervene.
13. Mr. Ghosh had pointed out that even if it was not so recorded and the enquiry could not have been dispensed with, still then the employer had a right to prove its case before the learned Tribunal and, in fact, evidences were adduced and workman was given opportunity. Therefore, there were materials before the learned Tribunal to proceed with the case on the basis of materials as to whether the workman could be found guilty as to the allegations made and the fact remains that the workman was found guilty by the learned Tribunal. According to him, this being a finding of fact, this Court cannot interfere with it while sitting in appeal over a decision in a writ proceeding.
14. The proposition as contended by Mr. Ghosh seems to be settled proposition of law. If we proceed on the basis of the submission made by Mr. Ghosh, in that event, the absence of reasons given in the order of termination would not be material to affect the consequence. But if the finding of the learned Tribunal can be shown to be perverse, in that event, the question would be different. Our attention was drawn to the award passed by the learned Tribunal and the materials placed before this Court. Even if we go by the finding of the learned Tribunal as recorded by it, even then, one thing that troubles us is that in fact there is nothing to indicate that the alleged article was ever identified to belong to the employer. Even if it was so said orally, even then we could have gone with that. But the learned Tribunal proceeded to record that even if the identity of the billet was not established as belonging to the employer, even then, there was reason for the employer to lose confidence with the workman. In our view, this seems to be wholly a perverse finding. Evidence must be dependent on certain facts. There must be some nexus between the workman and the billet. It was shown that there was shortage in stock. But there is nothing to show that the billet recovered from the workman belonged to the employer and that it is not available in the market and was drawn from the stock of the employer company. Until the billet recovered was identified, there cannot be any nexus established with the incident and the workman. Thus, we find that the finding of the learned Tribunal was perverse. This fact was not placed before the learned single Judge and the attention of the Court was not drawn to this aspect. We, therefore, find that this is a case fit for interference.
15. Now we may turn to the question raised by Mr. Bose with regard to the submission of the final report by the Police Authority, as sought to be contended, relying on the decision of Capt. M. Paul Anthony (supra) is concerned, we do not find any substance, since in this case the termination was effected long before the final report was submitted. The ratio decided in Capt. M. Paul Anthony (supra) applies in case where there is a finding by a Court in a criminal proceeding and the allegations in the enquiry to be gone into are identical and based on same facts and then the findings of the Court would be binding on the Enquiry Officer in a given case. In fact, in this case, there is no finding by a Court. On the other hand, it is a finding in the final report by the investigating agency. The finding of the investigating agency cannot attract the principle laid down in Capt. M. Paul Anthony (supra). That apart, such question would arise only in a case where the enquiry is being held after a decision by a Court. Capt. M. Paul Anthony (supra) had never laid down that in a case where the enquiry is over and a decision has been arrived at, though, may be a subject matter of a pending proceeding, the order; would be reopened or recalled because of the inconsistent or reverse finding of a Court on the same allegations at a later point of time after the final order in the enquiry is passed. The ratio decided in Capt. M. Paul Anthony (supra) can be attracted to a case where the enquiry is being held after a decision by a Court on the same allegations and the facts have become final, but not in a case where the enquiry had become final before the decision of the Court. Thus, the principle laid down in Capt. M. Paul Anthony (supra) does not apply in the present case for two reasons: one, that there is no finding of the Court and it is only a final report submitted by an investigating agency; and the second, that this final report was submitted long after the decision by the employer.
16. In the result, the appeal succeeds. The award impugned and order of the learned single Judge is hereby set aside and the award is hereby quashed.
17. In the facts and circumstances, we should have sent back the case to be decided again afresh by the learned Tribunal. The workman has since retired in 1987. The order of termination was passed in 1973. A long period has lapsed. No useful purpose would be served if the matter is sent back to the learned Tribunal and the matter is decided afresh entailing another long drawn proceeding. Therefore, we do not propose to send the case back on remand. Since the workman had suffered over these long years and would have been entitled to get wages, having regard to the facts and circumstances of this case, we think that it would be justified if 50% (fifty per cent) of the back wages is paid. Then again, it would be a long drawn calculation. Therefore, instead of payment of 50% back wages, we direct payment of a lump-sum amount to the tune of Rs. 80,000/- (Rupees eighty thousand) to be spread over a period of 14 (fourteen) years from 1973-1987 as compensation, for the purpose of assessment of tax on income. The employer shall pay this amount within a period of three months from the date of communication of this order in full and final settlement of his dues including superannuation and other dues.
18. It is contended by Mr. Bose that his salary was Rs. 700/- (Rupees seven hundred) and odd. We take it as Rs. 800/- (Rupees eight hundred). In a year he would have got Rs. 9,600/- (Rupees nine thousand six hundred). For fourteen years, it would be around Rs. 1,34,000/- (Rupees one lakh thirty-four thousand), 50% (fifty per cent) of which is Rs. 67,000/- (Rupees sixty-seven thousand). Then Rs. 13,000/- (Rupees thirteen thousand) is added as retirement dues.
19. This appeal is, thus, disposed of.
20. There will be no order as to costs.