Gauhati High Court
Shri Chakra Seal vs Management Of Nonoipara Tea Garden & Anr on 23 July, 2015
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
WP(C) No. 4176 of 2007
Shri Chakra Seal,
Driver, Nonoipara Tea Garden,
P.O.-Panerihat, District-Darrang, Assam.
......Petitioner.
-Versus-
1. Management of Nonoipara Tea Garden,
Mangaldoi, Darrang, Assam.
2. The Presiding Officer,
Labour Court, Assam, Guwahati-3.
......Respondents.
Advocate(s) for the Petitioner : Mr. B. Chakraborty.
Advocate(s) for the Respondents : Mr. K. Goswami.
BEFORE
THE HON'BLE MR. JUSTICE HRISHIKESH ROY
Date of Hearing and Judgment : 23 rd July, 2015
JUDGMENT AND ORDER (ORAL)
Heard Mr. B. Chakraborty, the learned counsel appearing for the petitioner, whose service was terminated in pursuant to a disciplinary proceeding. The Management of the Nonaipara Tea Garden is represented by the learned counsel Mr. K. Goswami.
2. The petitioner was engaged as a casual worker in the year 1984 in the Nonaipara Tea Estate and thereafter on 01.02.1995 he was appointed as a driver. On 22.04.2001 the Gypsy vehicle driven by the petitioner met with an accident in the Chandrapur area and since the accident spot was a detour from the National Highway (normal route for the journey from Jorhat to Guwahati), the petitioner was suspended and a charge memo was drawn up against him by the Manager on 04.05.2001 (Annexure-I) with the following allegation:
WP(C) 4176/2007 Page 1 of 8"On 22nd April, 2001 defying instructions given to you by the Manager, you had allegedly taken the Company Gypsy bearing registration No.AS- 01-H-1995 to a village in Chandrapur area, which is about 30 kms away from Guwahati for your personal work. The instructions given to you were to drop the Company Visitor at Jorhat on 21st April 2001 and thereafter to report back at Guwahati city the next day i.e. 22nd April 2001 after spending the night at Jorhat on 21st April 2001. It has been reported by the police at Pragjotishpur Police Station which falls under Chandrapur area that you had entered the village at about 2.00 p.m. in the afternoon on 22nd April, 2001 and thereafter you consumed alcohol with your friends namely Shri Kartik Boro and others. You had allegedly taken the Company Vehicle along with your friends in it to enjoy a Bihu function in a nearby area at about 8.00 p.m. on 22nd April, 2001 when a serious accident took place as you lost control of the vehicle, which ultimately fell down a hill completely damaging the Company's Vehicle.
To cover up your deficiencies, you had lied to the Police Station the next day of the accident that two-armed ultras i.e. ULFA militants had overpowered you at gunpoint while you had stopped for tea break at Jakhlabandha and took over control of the vehicle and drove towards Chandrapur and ultimately met with the accident. On enquiry the police found that your statements were not true and were concocted. Later you confessed to your guilt and apologized to the police by a written statement in presence of our Garden Medical Officer who took you out on bail. Your acts of negligence had put the Garden Management into a lot of inconvenience in terms of valuable time and money required to be spent to get you out on bail.
The above acts of yours if proved, are serious offences under Standing Order in force on this estate. Your above noted acts of deliberate negligence of duty and disobedience of your superior's instructions led to a huge loss of Company's finances as the brand new vehicle worth Rs.5 lacs has been damaged beyond repairs.
I therefore call upon you to explain by 8.00 a.m. (IST) on 14th May, 2001 why you should not be dismissed or otherwise punished. Your written explanation should be presented to me by the above mentioned date and time when I will consider it.
As the charges leveled against you are of a serious nature, you are hereby suspended from your duties from immediate effect until the conclusion of the enquiry.
During the period of suspension, you will be entitled to a subsistence allowance as provided for in the clause 9(e) of Standing Orders for tea estates in Assam. You shall also be entitled to continue to draw rations at confessional rates."WP(C) 4176/2007 Page 2 of 8
3. In his reply furnished on 14.05.2001 (Annexure-II), the petitioner admitted to the accident, but explained it as an misfortune and tried to justify the choice of the alternate route to reach Guwahati.
4. Dissatisfied with the explanation furnished by the charged employee, the Manager ordered for an enquiry into the charges. During the enquiry, the Management produced 3 witnesses, but the workman did not produce any defence witness. In the report dated 12.07.2001 (Annexure-III), the Enquiry Officer concluded as follows:-
"................
(1) That the charge-sheeted driver's act of deliberate negligence of duty and disobedience of his superior's instructions led to a loss of company's finances as the brand new vehicle worth Rs.5 Lacs has been damaged beyond repairs.
The above charges have been proved against the charge-sheeted driver by the management with overwhelming and convincing evidence. I find him guilty."
5. On the basis of the guilty finding given by the Enquiry Officer, the petitioner was dismissed through the order dated 25.10.2001 (Annexure-IV). Thereafter when conciliation failed, a reference was made to the Labour Court, Guwahati, under Section 10 of the Industrial Disputes Act, 1947 on the following points:-
"i) Whether the Management of Nonaipara Tea Estate, P.O. Panerihat, Dist.-Darrang (Assam) is justified in dismissing Shri Chakra Seal - Driver or not?
ii) If not, is he entitled to re-instatement with full back wages and benefits or any other relief in lieu thereof?"
6. On the validity of the domestic enquiry, a preliminary award was given by the Labour Court on 09.11.2004, whereby the enquiry was held to be unfair and consequently as was earlier requested by the Management, they were given the liberty to adduce evidence before the Labour Court itself, to justify the dismissal order.
7. Before the Labour Court, the Management adduced 3 witnesses, whereas the charged driver produced 1 defence witness and also examined himself. After considering the evidence on record, the learned Labour Court concluded that the explanation given by the driver for avoiding the normal WP(C) 4176/2007 Page 3 of 8 national highway to take the detour through Chandrapur route to reach Guwahati is unbelievable. Accordingly it was concluded that the driver failed to obey due instruction to proceed straight to Guwahati on 22.04.2001. Since the conduct of the driver led to loss of faith by the Management, the Labour Court opined that the punishment of dismissal was appropriate.
8.1 Assailing the legality of the conclusion reached by the learned Labour Court, Mr. B. Chakraborty, the learned counsel submits that several relevant evidence such as the statement given by the petitioner to the Pragjyotishpur Police Station, the report of the motor vehicle inspector of brake failure, were not taken into account by the Enquiry Officer and therefore the conclusion reached by the Enquiry Officer and also by the Labour Court are contended to be unfounded.
8.2 The petitioner argues that the Labour Court failed to adequately discuss the evidence on record and accordingly it is submitted that a perfunctory exercise was carried out by the Court and therefore it's conclusion is not tenable in law.
8.3 Referring to the unblemished service record of the driver, Mr. B. Chakraborty submits that the punishment is disproportionate to the charged misconduct.
9.1 In support of the action taken against the charged driver, Mr. K. Goswami, the learned counsel submits that the instruction given to the driver was to return to Guwahati on 22.04.2001 and he had no business to take a detour from the normal highway route to visit his friends at Chandrapur. As the specific instruction was defied by the driver, which led to the accident and considerable damage to the vehicle owned by the company, Mr. Goswami submits that the disciplinary action was proportionate with the misconducted committed by the driver.
9.2 The counsel submits that the impugned finding was rendered on the basis of evidence adduced before the Labour Court by the Management and the workman and therefore, the respondent contends that interference by the writ Court will not be justified to disturb the factual conclusion, as the High Court is not sitting in appeal over the finding of fact given be the Labour Court.
WP(C) 4176/2007 Page 4 of 810. It is well settled that the employer is entitled to adduce evidence for the first time before the Industrial Court in the event the domestic enquiry is held to have been defective. In Workmen of F.T. & R. Co. Vs. The Management & ors. reported in AIR 1973 Supreme Court 1227, the Apex Court enunciated the law on the issue as under:-
".............
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimization.
......................"
11. The above ratio has stood the test of time and therefore the independent exercise undertaken before the Labour Court in the instant case, is found to be legally permissible. The question is whether the Labour Court based its conclusion on relevant evidence.
12. It must also be borne in mind that the standard of proof in a departmental proceeding is preponderance of probability and if there is acceptable evidence for the conclusion reached by the Labour Court, interference in exercise of supervisory jurisdiction may not justified in a disciplinary matter.
13. In this case, the petitioner invokes the supervisory jurisdiction under Article 226 and it is well settled that the writ of certiorari can be issued for correcting errors of jurisdiction and the High Court does not exercise appellate power to review finding of facts reached by the inferior Tribunal, even if they are erroneous. However, a manifest error apparent on the face of the record can always be corrected.
WP(C) 4176/2007 Page 5 of 814. In Surya Dev Rai Vs. Ram Chander Rai & ors. reported in (2003)6 SCC 675, the Apex Court after referring to the earlier decisions, concluded as follows:-
"........................
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-
appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
WP(C) 4176/2007 Page 6 of 8(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
15. If we now examine the award made by the Labour Court on the basis of the above legal propositions and refer the evidence, it must be held that the conclusion was reached by the Labour Court upon relevant materials. For instance Dr. Anupam Biswas (MW-1) proved the precise instruction given to the driver to return back to Guwahati on 22.04.2001. He also proved that the driver having met with the vehicular accident was detained in the Pragjyotishpur Police Station and that is why he failed to return back to Guwahati on 22.04.2001. The next witness of the management, Debendranath Sarma, the Asstt. Executive Engineer of the PWD and the MW-3 Junior Engineer of the PWD highlighted the poor road condition of the detour route taken by the driver. The defence witness Kartik Boro rescued the petitioner and offered him first aid at his own residence after carrying him from the accident spot and he proved that the petitioner was involved in the vehicular accident. The version of the workman was that the accident occurred because of brake failure. Considering all these evidence, the Labour Court opined that if the vehicle had just suffered mechanical problems the detour route being damaged and unfrequented, couldn't have been opted by the driver for bonafide reasons and thus it was concluded that the driver took the other route for his own purpose and this was in defiance of the specific instruction given to him by the Management. Thus consequential inference was drawn on the negligence committed by the driver and also the disobedience to the orders of his superior, which led to damage to the Gypsy vehicle of the T.E. From this analysis it is apparent that the conclusion reached by the Labour Court was reasonable and the process of the Court couldn't suffer from any infirmity.
WP(C) 4176/2007 Page 7 of 816. As the finding of the Labour Court was based on evidence adduced by the parties, the non-consideration of other evidence wouldn't be fatal as the material establishes the guilt of the driver.
17. In the above circumstances and considering that the standard of proof is preponderance of probability, in exercise of certiorari jurisdiction, I see no scope to interfere with the finding given by the Labour Court as the said conclusion doesn't suffer from any manifest error.
18. Now the Court is required to examine whether the punishment of dismissal is proportionate to the proven misconduct. Under the standing orders applicable for the employees of Tea Estates, willful disobedience and destruction and damage to garden property, amounts to gross misconduct under sub-clause (1) and (11) of clause 10(a) and from the evidence on record it is apparent that the charged driver had committed a gross misconduct in the present case. As a driver entrusted with the Company's vehicle, the petitioner should have acted with greater responsibility and couldn't have chosen to go on a joyride by defying the specific instruction given to him.
19. In such backdrop, the loss of faith by the Management on the driver cannot be considered to be irrational and accordingly I hold that the punishment of dismissal is reasonable and proportionate to the misconduct proved against the driver.
20. Taking the above factors into account and bearing in mind the limited scope for interference in exercise of supervisory jurisdiction, I don't find any failure of justice or patent error with the decision given by the learned Labour Court on 05.09.2006 and accordingly this case is dismissed. No cost.
JUDGE Roy WP(C) 4176/2007 Page 8 of 8