Jharkhand High Court
Institute Of Science And Management ... vs The Chief Secretary on 13 February, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 W.P. (L). No. 1185 of 2016
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L ) No. 1185 of 2016
Institute of Science and Management (formerly known as
Indian Institute of Science and Management ) having its
registered office at ISM Campus, Pundag P.O.- Dhurwa,
P.S.- Jagarnathpur, Dist.- Ranchi-834004 (Jharkhand )
through its Director Guneshwar Das Gulab, Son of late
Ras Bihari Das, resident of A-63, Ashokpuram Opp. Road
No. 4, Ashok Nagar, Ranchi , P.O. & P.S.- Ashok Nagar,
Ranchi .......... Petitioner
Versus
1. The Chief Secretary, State of Jharkhand at Project Bhawan,
Dhurwa, Ranchi , P.O.- Dhurwa, P.S.- Jagarnathpur,
Ranchi
2. The Secretary, Department of Labour and Employment
Training, Nepal House, Doranda, Ranchi, P.O. & P.S.-
Doranda, Ranchi
3. Suraj Bhushan, son of Rang Bihari Singh, resident of 192,
AG Colony, Kadru, Ranchi 834002, P.O. & P.S.- Hinoo,
Ranchi ........... Respondents
For the Petitioner : Mr. Rahul Kr. Gupta , Adv.
Ms. Debolina Sen Hirani, Adv.
For the Respondents : Mr. Amritanshu Singh , Adv.
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This writ petition has been filed invoking the jurisdiction of this court under Article 226 of the Constitution of India, with the following prayers:
(a) For quashing the award dated 30.09.2015, in Reference Case no. 03 of 2002, passed by the Presiding Officer, Labour court, Ranchi;2 W.P. (L). No. 1185 of 2016
(b) For holding that the aforesaid award dated 30.09.2015 in Reference Case no. 03 of 2002 granted in favour of the Respondent no. 3 is illegal, arbitrary and against law;
(c) For holding that the reference made by the government of Jharkhand dated 06.04.2002, under Section 10(1) (c) of Industrial Disputes Act, 1947 is bad in law.
3. The brief facts of the case is that the appropriate government being the government of Jharkhand, referred the following industrial dispute to the labour court, Ranchi for adjudication:-
"Whether the dismissal of the service of Suraj Bhushan, Assistant, Indian Institute of Science and Management, Campus Pundag, Ranchi is justified? If not then what relief the related workman is entitled to?"
4. The case of the respondent workman is that he was working in the Indian Institute of Science and Management, Pundag Ranchi. The respondent workman was dismissed from his service earlier by virtue of the letter dated 19.12.2000, unjustifiably, illegally and wrongfully. Earlier also, the workman was dismissed on 08.11.1999 but the previous dismissal was withdrawn vide letter dated 18.02.2000. When the workman joined in compliance of the letter dated 18.02.2000, false allegations were levelled at him with a view to terminate his service. The Domestic enquiry which was conducted by the management was merely a formality because no reasonable opportunity was accorded to the workman to defend himself. The domestic enquiry before his dismissal on 19.12.2000, was a mere formality, wherein the principle of natural justice was denied. When the matter could not be resolved by way of conciliation, between the workman and the management, the reference has been made by the appropriate government.
5. The workman was initially, appointed by the management with effect from 01.12.1988, the appointment was without appointment letter and no terms and conditions was mentioned in the appointment letter. The workman, was performing extra duties, i.e. managing the class in addition to the clerical jobs for 3 W.P. (L). No. 1185 of 2016 special allowance of Rs 100/- per month. The management re- designated the workman as Personal Assistant to the Director (Studies) from the post of the Assistant vide letter dated 05.10.1994. The workman was transferred to a different organisation known as Institute of Professional Studies, (IPS) vide letter dated 23.02.1999 and the only connection between the two organisations is that the Director of IPS happens to be the wife of Sri A.K.Verma, the director of the IISM. The workman continued to be under the administrative control of IISM for all purposes and was required to look after other activities of IISM. The management issued a charge sheet on 12.08.1999 mentioning false allegations. The workman submitted an explanation on 13.08.1999 giving detailed explanation of the charges levelled against him. On 08.11.1999 , the termination order of his services was issued. The workman challenged the same raising an Industrial Dispute under Section 2A of the Industrial Disputes Act, 1947 and placed the matter for conciliation and conciliation officer instituted the conciliation proceeding which culminated in the settlement of the dispute due to intervention of the conciliation officer and in view of the settlement, the director, IISM, by virtue of his letter dated 18.02.2000, withdrew the order of termination of the service of the workman and the workman was directed to report to Dr. U.N.Choudhary, with immediate effect and collect his wages payable to him, treating his services to be continuous after 08.11.1999 and accordingly, the workman submitted his joining report on 15.03.2000 but the same was refused. With the intervention of the conciliation officer, to whom the workman informed about the refusal of the management to permit him to join, the workman ultimately joined his services on 16.03.2000 at 4.05 PM. The workman was not granted any receipt of his joining letter nor allotted any work till 20.03.2000. The workman wrote a letter to the Director, IISM (Studies), demanding his pay and back wages but the management tortured the workman by levelling false charges including the previous charges, although the 4 W.P. (L). No. 1185 of 2016 previous charges were revoked by the management. Finally the management served a charge sheet vide letter dated 27.05.2000 containing 22 charges. The workman also replied to his by submitting his explanation on 03.06.2000. Further the workman was asked to work in most inhuman conditions particularly, in the month of May, the workman was made to sit in a room having roof of corrugated sheets without any facility of air or cross -ventilation and he was required to shut the door of room. Upon submissions of the reply by the workman to the charges, a domestic enquiry was conducted by the Sri H.K.Roy- Enquiry Officer; who submitted a report against the workman. It is asserted by the workman that the enquiry was conducted without according reasonable opportunity to the workman in violation of the principle of natural justice. The Enquiry Officer did not consider the oral and documentary evidence of the workman and adopted indifferent attitude towards the workman. The workman was deprived of the assistance of the defence counsel and the senior employees of the institute also did not co-operate with the workman; due to fear of the management. It is asserted by the workman that domestic enquiry conducted by the management is illegal and bad in law. The management has got no, any certified standing order duly certified under the provisions of the Industrial Employment Standing Order Act. As such, model standing order should be applied for the purpose of the departmental proceeding, initiated against the workman. The management applied Conduct, Discipline and Appeal Rules, which has neither any force of law nor has been prepared on the basis of any settlement with the employee. After conclusion of the enquiry, the workman was informed to file a written argument but the written argument was not accepted by the management. The workman sent written argument through post and sent a copy thereafter to the management which was also not accepted. On the basis of this, bad enquiry, the management finally dismissed the workman vide order dated 19.12.2000, hence, it 5 W.P. (L). No. 1185 of 2016 was contented by the workman that the action of the dismissal on him, was pre-determined one and the management before learned Labour Court, pleaded in their written statement, that Indian Institute of Management is not an industry but an educational institution, only engaged in imparting education. So , the provisions of the Industrial Disputes Act, 1947 does not apply to the writ petitioner, management. The management accepted that the workman Suraj Bhushan was employed with the institution as an Assistant from 23.02.1990 to 12.08.1999 and he was deputed to work in Institute of Professional Studies, Ranchi and during the period of his deputation, he committed several acts and omission and commission of which constituted act of mis-conduct on his part in violation of provision of Administrative Conduct Rules and Regulation, which are applicable to him. The management issued charge-sheet and 22 charges were levelled against him. The workman was called upon to submit his explanation. On 03.06.2000, the workman submitted his reply which was not considered satisfactory, and domestic enquiry was conducted. After domestic enquiry, the Enquiry Officer, found the charges to be true in his enquiry report. The Director (Studies) being the appointing authority of the workman, accepted the enquiry report and found the workman guilty of 20, out of 22 charges. The workman was asked to submit his representation in connection with the enquiry report by submitting a copy of the enquiry report but the same was refused by the workman. The envelope sent through the registered post, was returned with an endorsement of the postal peon as refused and again, the said document was sent through the Peon, and the Peon also reported that the concerned employee refused to receive the closed envelope by making such endorsement in the closed envelope. The respondent workman was dismissed from his service.
6. In support of its case, the workman examined four witnesses besides providing the documents, which have been marked as Ext.
6 W.P. (L). No. 1185 of 2016A to I, while from the side of the management, five witnesses were examined and the management also proved the documents, which have been marked as Ext. 1 to 24.
7. Learned Labour Court, considered the undisputed facts of this case being the existence of relationship of the employer and employee between the workman and the management, dismissal from service of the workman and that prior to passing of the award dated 30.09.2015, learned Labour Court has already held that the domestic enquiry conducted against the workman is violative of the principal of natural justice and finding of the enquiry officer is unjustified and without any cogent reason.
8. Learned tribunal did not accept the contention of the management that educational institution is not an industry. Learned tribunal took note of all the 22 charges levelled against the respondent. The tribunal observed that as conduct, Discipline and Appeal Rules, has been framed by the management after termination of the services of the workman, so the same cannot be applied against the workman and the management has not proved any charge before the labour court, after 26.03.2007 when vide the said order , the labour court held that the domestic enquiry was malafide and in violation of the principle of natural justice. The tribunal further went on to hold that the management has examined some interested witness, but did not examine the Enquiry Officer, of the domestic enquiry. Learned Labour Court considered that the MW2, in para 44 of his cross-examination, has admitted that the workman never misbehaved with him nor he could state any incident, where he has seen the workman misbehaving with anyone. The MW2 has admitted that the workman never misbehaved with him and he deposed about the misbehaviour on the part of the respondent. On the basis of hearing from other persons. Learned Labour Court, also considered the deposition of PW5 who in para 19 of his cross-examination, has stated that the behaviour of workman with him, was good and he stated that in the hearsay evidence in his affidavit filed as his examination-in-
7 W.P. (L). No. 1185 of 2016chief and PW5 also admitted that he is not a witness of the domestic enquiry. Learned Labour court, also considered that the deposition of the MW1 in para 60 of his cross- examination who has stated that any employee, who is not in service, for that period, charge of misconduct, cannot be levelled against him and he also admitted that the respondent -workman was not in service of the management institution on 03.03.2000. The Labour court, also considered the testimony of the witness examined by the workman who has stated that the workman was victimised by the management with the objective that the workman could be bound to quit the job and after considering the materials in the record, learned Labour Court, observed that out of 22 charges, levelled against the workman, charges from sl. No. 1 to 10, ought not have been clubbed by the management against the workman in the subsequent charge-sheet after his reinstatement, because some of them, relates to the period in which, the workman was not in service and some charges have been levelled against the workman in the period when he was under dismissal, before his reinstatement. Learned Labour Court, also considered that the charges does not contain any specific allegation nor they relate to violation of any specific clause of the standing order.
9. Learned Labour Court next considered that in the absence of leave register, the attendance register or the examination of any gate keeper, by the management, the management cannot substantiate the charges, levelled against the respondent, regarding his absence without permission or his not putting signature on the entry register before the Watchman and no explanation, has been assigned by the management for not producing such oral or documentary evidence. So the adverse interference, can be drawn against the management and sent on to answer the reference by holding that the dismissal of the workman is not justified since the workman has stated in his evidence that after dismissal, he is not gainfully employed anywhere and this facts is undisputed because management has not challenged this part of the testimony either 8 W.P. (L). No. 1185 of 2016 during the cross-examination or argument, nor any documentary evidence has been adduced about his re-employment anywhere after dismissal, therefore the workman is entitled for re- instatement with back wages and all consequential benefits and directed the management to reinstate the workman with back wages and other consequential benefits from the date of raising of the industrial dispute.
10. Learned counsel for the petitioners submits that learned Labour court committed perversity by wrongly putting the MW2 having stated in his cross-examination that the respondent - workman did not misbehave before him though in fact, he has stated that the workman never misbehaved with him. It is next submitted by learned counsel for the petitioner that the though the petitioner has not made specific prayer but in the grounds, the petitioner has contended that the labour court erroneously came to the conclusion that the domestic enquiry was not sustainable, being malafide and vitiated in violation of the principle of Natural Justice.
11. It is further submitted by learned counsel for the petitioner that the evidence in the record is sufficient to establish all the charges framed against the respondent - workman but learned Labour Court committed a gross illegality by ignoring the cogent evidence in the record which was sufficient to establish all the charges. Relying upon the judgment of the Hon'ble Supreme Court of India in the case of Bhavnagar Municipal Corporation & Ors. Vs. Jadeja Govubha Chhanubha and Anr. reported in (2014) 16 SCC 130, it is submitted by the learned counsel for the petitioner that only because some documents have not been produced by the management, no adverse inference can be drawn against it and learned tribunal committed gross illegality by drawing adverse inference against the writ petitioner- management for not examining the Enquiry Officer namely Sri H. K. Roy.
9 W.P. (L). No. 1185 of 201612. Learned counsel for the petitioner next relies upon the judgment of the Hon'ble Supreme Court of India in the case of Cooper Engineering Limited vs Shri P. P. Mundhe reported in (1975) 2 SCC 661, para 22 of which, reads as under:
"22. We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the labour court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication."
and submits that the parties are not entitled to stall the final adjudication of the dispute by the labour court, by questioning its decision with regard to the preliminary issue whether the domestic enquiry was violative of the principle of natural justice, hence, the only way, the same could have been challenged by the petitioner, is by filing this writ petition. It is next submitted by learned counsel for the petitioner that during the pendency of this writ petition, the respondent filed an application under Section 17 B of the Industrial Disputes Act, 1947 the petitioner filed an supplementary affidavit bringing on record, copy of the income tax return, filed by the respondent -workman for the assessment year, 2014-15, 2015-16 and 2016-17, showing his gross total income to be Rs. 3,56,948/- , Rs. 3,84,770/- and Rs. 4,04,867/- respectively and these are unimpeachable documents, which have not been questioned by the respondent -workman, though the copy of the same was also served upon the respondent - workman, rather the respondent workman upon filing of such supplementary affidavit, by the petitioner, withdrew, the interlocutory application no. 6585 of 2016 filed under Section 17 B of the Industrial Disputes Act, 1947.
10 W.P. (L). No. 1185 of 201613. Learned counsel for the petitioner further submits the only basis for the labour court, to hold that the workman was not gainfully employed is, his deposition on 10.01.2012 in which, he as stated that up to 10.01.2012, he was not gainfully employed but as there is an unimpeachable document in the record, in shape of copy of the income tax returns, of the respondent -workman, it is submitted by the Learned counsel for the petitioner that in case, it is held by this court that there is no justification for interfering with the award of reinstatement, even then the portion of the award relating to payment of back wages be modified by confining the same up to 31.03.2012 as thereafter, there is unimpeachable evidence in the record, that he was gainfully employed. It is submitted by learned counsel for the petitioner that the prayer made in the writ petition, be allowed.
14. Learned counsel for the respondents, on the other hand, so far as the contention of the writ petitioner that the educational institution is not an industry is concerned, submits that the said question has been answered by a seven Judge Bench of the Hon'ble Supreme Court of India in the case of Bangalore Water- Supply & Sewerage Board vs. A. Rajappa & Others reported in (1978 ) 2 SCC 213, of course, the same has been referred to a larger Bench vide the judgment reported in 2005 (5) SCC 1 in the case of State of U.P vs Jai Bir Singh, but the view taken in the case of Bangalore Water-Supply & Sewerage vs R. Rajappa & Others holds the field.
15. Learned counsel for the respondents next relies upon the judgment of the Hon'ble Supreme Court of India in the case of Anil Gilurker v. Bilaspur Raipur Kshetriya Gramin Bank and Another reported in (2011) 14 SCC 379, para 13 and 14 of which reads as under:-
"13. As has been held by this Court in Surath Chandra Chakrabarty v. State of W.B. [(1970) 3 SCC 548] : (SCC p. 553, para 5) "5. ... The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge 11 W.P. (L). No. 1185 of 2016 is based and any other circumstance which is proposed to be taken into consideration in passing orders has also to be stated. This rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him."
14. This position of law has been reiterated in the recent case of Union of India v. Gyan Chand Chattar [(2009) 12 SCC 78 : (2010) 1 SCC (L&S) 129] and in para 35 of the judgment as reported in SCC, this Court has observed that the law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice and the charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges."
and submits that the charges framed against the workman is vague. The charge sheet is not accompanied by the statement of allegations on which, each charge is based and nor any other circumstance, which is proposed to be taken into consideration in passing the order has been stated and none of the witness produced by the management could testify any misconduct, committed by the petitioner, hence, there is no justifiable reason to interfere with the said order.
16. Learned counsel for the respondents next relies upon the judgment of the Hon'ble Supreme Court of India in the case of Raghubir Singh vs General Manager, Haryana Roadways, Hissar reported in (2014) 10 SCC 301 and submits that in the facts of that case, when the termination order passed was highly disproportionate to the gravity of the misconduct, which shocked the conscience of the Hon'ble Supreme Court of India and the Hon'ble Supreme court of India, set aside the orders and directed reinstatement of the appellant -workman before it with back wages from the date of raising the industrial dispute till his reinstatement with all consequential benefits.
17. Having heard the submissions made at the bar and after going through the materials available in the record, by now it is a settled principle of law, as has been held by the Hon'ble Supreme Court of India in the case of the Syed Yakoob vs K.S. Radhakrishnan & Others reported in AIR 1964 SC 477, para 7 of which reads as under :-
12 W.P. (L). No. 1185 of 2016"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque [(1955) 1 SCR 1104] Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam [(1958) SCR 1240] and Kaushalya Devi v. Bachittar Singh [AIR 1960 SC 1168]"
that, the High Court in exercise of jurisdiction under Section 227 of the Constitution of India, can interfere with the findings of the facts, of a labour court / tribunal, if the tribunal has not considered any evidence which was admissible or has considered any evidence which was inadmissible or there is any error of law or perversity.
18. Now coming to the facts of the case, this court finds that the petitioner has not made any prayer so far as the finding of learned Labour Court that the domestic enquiry has violated the principle of natural justice. So it was for the labour court to consider on the basis of the evidence put forth before it, that whether the same is sufficient to establish the charges levelled by the management against the workman. As already discussed above, none of the witnesses of the management has stated any specific act, committed by the respondent - workman to establish any of the charges, which is needless to say, do not contain any specific 13 W.P. (L). No. 1185 of 2016 incident rather the allegation of general nature which can be termed as vague.
19. Under such circumstances, as the labour court has not accepted any evidence which was inadmissible or has refused to act upon any evidence, which was admissible, nor any error of law, has been committed by it, in the considered opinion of this court, the impugned award passed by learned Labour Court cannot be termed as perverse, which is a sine qua non for exercising the jurisdiction under Section 227 of the Constitution of India but so far as the payment of back wages is concerned, by now it is a settled principle of law, as has been reiterated by the Hon'ble Supreme Court of India in the case of Ramesh Chand vs. Management of Delhi Transport Corporation reported in 2023 LiveLaw (SC) 503 that even if the court passes an order of reinstatement in service, an order of payment of back wages, is not automatic. As already discussed above, there is unimpeachable, evidence in the record in shape of income tax returns filed by the respondent workman that he was in gainful employment, at least, in the financial year 2013-14 onwards, which relates to assessment year 2014-15 onwards and the evidence in the record, basing upon which learned tribunal has held that the respondent workman was not gainfully employed was the statement made by the respondent
-workman, in his deposition on 10.01.2012, there is no material in the record to suggest that thereafter, also, the respondent - workman was not gainfully employed rather the evidence is to the contrary; as is evident from the income tax returns.
20. Under such circumstances, this court so far as it relates to the payment of back wages, modifies the same by confining the same to the payment of back wages and all consequential benefits, only up to 31.03.2012.
21. In view of the discussion, made above, this court do not find any justifiable reason to interfere with the award, so far as the reinstatement of the respondent - workman is concerned, but 14 W.P. (L). No. 1185 of 2016 modifies the award, so far as the payment of the back wages and all consequential benefits to the respondent - workman is concerned, only up to 31.03.2012.
22. The writ petition is disposed of accordingly with the aforesaid modification.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 13th February, 2024 Smita /AFR