Jharkhand High Court
Management Of Sail-Bokaro Steel Plant vs Their Workman on 11 November, 2020
Author: S.N. Pathak
Bench: S. N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No. 4332 of 2017
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Management of SAIL-Bokaro Steel Plant,
Bokaro Steel City, Bokaro, through
Mr. J.T. Kongari, son of late P.L. Kongari,
working as Deputy General Manager (Law),
Steel Authority of India Ltd., Bokaro Steel Ltd.,
P.O. & P.S. B.S. City, Dist. Bokaro (Jharkhand)
.... ... Petitioner
VERSUS
Their Workman, represented by President,
Krantikari Ispat Majdoor Sangh,
having its office at Sector-9A, 673,
Bokaro Steel City, P.O. & P.S. Bokaro
Steel City, District Bokaro, Jharkhand ... ... Respondent
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
For Petitioner : Mr. Indrajit Sinha, Advocate
Mr. Bibhash Sinha, Advocate.
For the Respondent : xxxxxxx
.........
C.A.V. on 12.10.2020 Pronounced on 11.11.2020
JUDGMENT:
Dr. S.N. Pathak, J. Heard counsel for the parties.
2. This writ petition has been directed against the Award dated 20.12.2016, passed by the learned Presiding Officer, Labour Court, Bokaro in Ref. Case No. 03 of 2002, whereby learned Labour Court has set aside the departmental enquiry held against the respondent-workman and directed the petitioner-Management to treat the said workman to be in continuity of service from the date of his dismissal till the date of his superannuation and further awarded a lump-sum amount of Rs.1,50,000/- in favour of the workman as back wages.
3. Shorn of unnecessary details, the respondent-workman was a displaced person from village Gorawali and joined the services of the petitioner-Company on 18.04.1983. Since, he was a habitual absentee, the petitioner-Company was forced to weed him out from the service. It is stated that he was firstly, charge- sheeted on 11.11.1992 for unauthorized absence and left-out after issuing a warning. He was again charge-sheeted for the said misconduct on 25.02.1997 and 2 left with issuance of censure on 12.03.1997. Thereafter, he was charge-sheeted for the third time on 09.03.1998 for the said act and his pay was reduced to minimum level on 05.11.1999. It is further stated that he worked for 215 days in 1994, 217 in 1995, 205 in 1996, 138 in 1997 and 75 days in 1998, which shows that the workman was given ample opportunities to improve his attendance, but he failed to do so. He again started absenting himself from duty w.e.f. 08.11.1998, the Management issued a letter dated 24.11.1998 to him, impressing upon him to report for duty or at get himself admitted in Bokaro General Hospital in case he is sick but he did not respond. Consequently, a notice-cum-charge-sheet dated 08.01.1999 was issued to the workman for his continuous absence from 08.11.1998 onwards and thereafter, first sitting of Enquiry Proceeding was fixed for 16.01.1999. Thereafter, the workman joined his duty on 01.03.1999 and took part in the enquiry proceedings. In the enquiry proceedings, the workman accepted the charges on 11.03.1999 without any reservation, and, hence, he was held guilty. Thereafter, second show-cause notice was issued to him on 09.04.1999 but he did not submit any reply and ultimately, he was dismissed from the service on 10.05.1999.
Aggrieved by his dismissal order, the workman through his Union had approached the concerned Department of State Govt. for getting the dispute referred to the Labour Court for adjudication. Thus, vide notification dated 16.02.2002, the dispute was referred to Labour Court, Bokaro by framing following issue for adjudication:
"Whether the dismissal of Shri Surendra Prasad Singh, Khalasi, Staff No. 63422, Cock Oven Bai product plant, Bokaro Steel City is justified ? If not, what relief he is entitled to ?"
4. Upon receipt of the notification, the reference was registered as Ref. Case No. 03 of 2002 and notices were issued by the learned Presiding Officer, Labour Court, Bokaro to the parties and the parties appeared and contested their respective cases by filing written statements. Learned Labour Court, Bokaro, after hearing the parties and perusing the evidences and documents brought on record, vide its Award dated 20.12.2016 answered the reference in favour of the Workman, setting aside the departmental enquiry held against the workman and further, observed that:
".............. As the order passed in the departmental enquiry has been set aside, therefore, the workman shall be treated as 3 continuity in service from the date of his dismissal till the date of his actual superannuation but no order for back wages. However, he would be entitled for a sum of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) as lump sum compensation to meet the ends of justice. The management is directed to implement the award within three months from the date of pronouncement of this award."
5. Aggrieved by the said Award dated 20.12.2016, the Management has knocked the door of this Court.
6. Mr. Bibhash Sinha, learned counsel appearing for the petitioner-
Management submits that Award dated 20.12.2016, passed by the learned Presiding Officer, Labour, Bokaro is bad in law and as such, liable to be quashed and set aside by this Court. Learned counsel further argues that the learned Labour Court has grossly misinterpreted Clause 38 (f) of Standing Order and thus, came to a wrong conclusion. Clause 38(f) of the Standing Order, nowhere prescribes that non-executive employee can be removed only by the Managing Director, and, therefore, Executive Director (Works) cannot be termed as an authority not competent to pass order of dismissal. Learned counsel further argues that learned Labour Court has failed to appreciate the fact that workman has not adduced any evidence to establish that the Appointing Authority is the Managing Director and despite the aforesaid fact, the Labour Court, only on the basis of presumption held the Managing Director as the competent authority, as he is the Appointing Authority of the workman. It has also been argued that learned Tribunal failed to appreciate that findings arrived at by the Enquiry Officer cannot be disturbed by the Court/ Tribunal, as if working as an Appellate Authority. It has been further argued that learned Tribunal has grossly misinterpreted and overlooked Ext. M-5 i.e. application dated 11.03.1999, admittedly written by the workman himself, wherein he has admitted his guilt. Learned counsel further argues that workman was a habitual absentee and earlier on three occasions punishments were inflicted for his misconduct, though the same were minor and on fourth occasion, again for the same act of misconduct of absenteeism, the Management started domestic enquiry and finally, dismissed the workman from the services. Learned counsel accordingly submits that for the aforesaid facts and reasons, there is no procedural infirmity in the domestic enquiry and as such, Award dated 20.12.2016 is fit to be quashed and set aside.
47. On the other hand, case of workman before the Tribunal was that the charge-sheet did not contain the period of absence and as such, the same was vague and ambiguous. It was the further case of the workman that the charge- sheet was given to him one day before the last date of submission of reply and inspite of that, when the workman went to submit his reply in the afternoon of the last date for submission of reply, he was not permitted to do so and the Enquiry Committee started the proceeding without issuing any intimation to him and as such, no opportunity was given to the workman to present his case. The workman was also not allowed to adduce evidence in support of his case and further, he was not permitted to cross-examine the Management's witnesses. It was the further case of the workman that he admitted before Enquiry Committee that he was absent from duty w.e.f. 09.02.1999 to 28.02.1999 due to his illness and was under
treatment of a Civil Assistant Surgeon, Govt. of Bihar and when he recovered from the said illness, he reported for his duty on 01.03.1999. In this regard he sent intimation to his Company and also obtained medical fitness certificate from Bokaro General Hospital. It was further case of the workman that findings of the Enquiry Committee is in violation of Clause-38(ii) of the Standing orders and the dismissal order is also against the principles of natural justice and as such, the learned Tribunal has rightly held that the workman is entitled for reinstatement in service and hence, the writ petition is fit to be dismissed.
8. Be that as it may, having heard the rival submissions of the parties and upon perusal of the documents brought on record, this Court is of considered view that no case is made out for interference in the instant writ application for the following facts and reasons:
(I) Order of termination is itself without jurisdiction since it has been passed by the Authority, who had no jurisdiction to pass the same. (II) Though the Management has submitted that workman was a habitual absentee but it is true that the workman was not charge-sheeted for previous misconduct and as per law, there has to be article of charge of previous absenteeism.
(III) The period of absence is not mentioned in the charge-sheet issued to the workman.
(IV) Further, from perusal of the records it appears that the workman has not been given opportunity to defend his case before the Enquiry Committee, since, he received the charge-sheet one day before the last date of 5 submission of reply and inspite of that, when the workman went to submit his reply in the afternoon of the last date for submission of reply, he was not permitted to do so and the Enquiry Committee started the proceeding without issuing any intimation to him and as such, no opportunity was given to the workman to present his case. The workman was also not allowed to adduce evidence in support of his case and further, he was not permitted to cross-examine the Management's witnesses.
9. For better appreciation, we have to look to the provisions enshrined under Clause-38(ii) of the Standing Orders, which reads as under:
"38(ii)(a) where a workman is charged with an offence which may lead to imposition of a major penalty, he shall be informed in writing of the alleagations against him and shall be given an opportunity to explain his conduct within a period of 7 days. On receipt of workman's explanation, it is decided to proceed further, an enquiry shall be held. Such enquiry shall be conducted by an officer other than the officer who either reported the alleged misconduct or has issued the charge-sheet. At the enquiry, the employee concerned shall be aforesaid reasonable opportunity of explaining and defending his conduct with the assistant of fellow workman if so requested by him. Where such enquiry relates to the alleged misconduct of several workmen, the enquiry may be held for all the workmen together."
10. It is clear that in case of major penalty, the workman shall be informed in writing of the allegations made against him and shall be given an opportunity to explain his conduct within a period of 7 days. But in the instant case, no explanation was sought by the Management from the workman for his unauthorized absence before initiation of domestic enquiry.
11. The Hon'ble Apex Court in case of Major U.R. Bhatt Vs. Union of India, reported in AIR 1962 SC 1344 has held that:
"5. As pointed out by this Court in Khem Chand v. Union of India and others 1959 (1) LLJ 167], in dealing with what is contemplated by reasonable opportunity to show cause in Art. 311(2) of the Constitution "the reasonable opportunity envisaged by the provision under consideration includes:
(a) an opportunity to deny his guilt and establish his innocence, which he can only do if he told what the charges levelled against him are and the allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally 6
(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant."
Further, in case of Pepsu Road Transport Corporation Vs. Lachhman Dass Gupta & Another, reported in (2001) 9 SCC 532, the Hon'ble Apex Court has held as under:
"3. We have examined the judgment of the lower appellate court as well as the impugned judgment of the High Court. In view of the conclusion of the lower appellate court, that even the documents relied upon by the department in establishing the charge have not been given to the delinquent, the conclusion is irresistible that the delinquent had been denied a reasonable opportunity to defend himself in the proceeding and, therefore, the lower appellate court as well as the High Court are fully justified in setting aside the order of termination passed by the competent authority. We, therefore, do not find any ground to interfere with the impugned judgment of the high Court passed in the second appeal. The appeal falls and is accordingly dismissed."
12. The Hon'ble Apex Court dealing with the similar issue in case of Harjinder Singh Vs. Punjab State Warehousing Corp, reported in (2010) 3 SCC 192 has held as under:
"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J., opined that:
"10............. The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State." (State of Mysore v. Workers of Gold Mines AIR 1958 SC 923)."7
13. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, I do not find any illegality or infirmity in the Award dated 20.12.2016, passed by learned Presiding Officer, Labour Court, Bokaro in Ref. Case No. 03 of 2002.
14. Viewed from jurisprudential perspective, we have to be cautious both in not overstepping as if Article 226 were as large as an Appeal and not failing to interfere where grave error has crept in.
15. Resultantly, the writ petition being devoid of any merit, is hereby dismissed. The Management is directed to comply directions given in the said Award, if not complied till date, within a period of four weeks, from the date of receipt/ production of a copy of this order.
16. Pending I.As, if any, also stand disposed of.
(Dr. S.N. Pathak, J.) kunal/