Calcutta High Court (Appellete Side)
Mr.Susanta Pal ... For The vs Sushil on 5 March, 2008
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
5.3. 2008
F.M.A.1905 of 2006
with
M.A.T.611 of 2007
with
W.P.7744(W) of 2001
Ms. Sanchita Barman Roy,
Mr. Raja Basu Chowdhury,
Mr.Susanta Pal ... For the appellant.
Mr.Sandip Ghosh,
Mr.Sudarsan Ray ...For the writ petitioner/
respondent.
Pratap Kumar Ray, J.
Heard the learned Advocates appearing for the parties.
Challenging the judgement and order passed by the learned trial Judge on 13th June, 2005 and 20th June, 2005 in the writ petition, being W.P. 7744(W) of 2001, two appeals have been preferred by Eastern Coalfields Ltd. as appellant which have been registered as M.A.T.611 of 2007 and F.M.A.1905 of 2006 respectively. Both the appeals are taken up for analogous hearing.
By the first order dated 13th June, 2005 the learned trial Judge though by setting aside the charge sheet and the order of dismissal, directed the authority to allow the writ petitioner's joining in the service who admittedly is a workman and also granted medical leave by considering the medical certificate as produced relating to the absence from duty for about eleven months, but kept the matter open for further hearing 2 of respondents as they were absent on that date. Subsequently by the order dated 20th June, 2005 on hearing the learned Advocate for the present appellant, the earlier order dated 13th June, 2005 was confirmed.
The factual matrix of this case in brief as follows. The writ application, being W.P.7744(W) of 2001, was moved by the writ petitioner who is a workman, assailing the order of dismissal from service on the ground that though he was absenting to from duties since 10th August, 1988 due to suffering from serious illness, the authority did not allow resumption to duty on 13th July, 1999 when he presented himself to join duty after recovery from illness, but was served with an order of dismissal from service on the ground of unauthorised absence. It is the contention of the writ petitioner that no enquiry proceeding was initiated and no hearing was given, hence there was a breach of natural justice.
The writ application has been opposed by the present appellant by filing affidavit-in- opposition by contending that the writ petitioner was a habitual absentee by detailing different period of absence from service. It has been further contended that the writ petitioner being a workman, the writ application was not maintainable as there was a full fledged procedural law as well as adjudicatory process under the Industrial Disputes Act. It has been further contended that charge sheet was served by Registered post with A/D. Notice of hearing was given by the Enquiry officer and ultimately the dismissal order was passed which was also communicated by performing formalities of second show cause notice as per law. The learned trial Judge passed the following two orders dated 13th June, 2005 and 20th June, 2005 which are quoted below.
" 13.06.05 W.P.7744(W) of 2001 Mr. Sandip Ghosh, Mr. Sudarsan Roy ...For petitioner.3
A prayer for adjournment was made on behalf of the respondents in this matter. However, Mr. Ghosh seriously opposes the prayer for adjournment, as this is a case of dismissal from services and his client is not in a position to concede to the prayer for adjournments. As such prayer for adjournment is refused.
By this writ application, the petitioner has challenged the entire disciplinary proceeding, which started with a charge-sheet and also the order of punishment of dismissal, passed by the disciplinary authority, affirmed by the appellate authority.
The petitioner says in his petition that he was absenting himself from the duty from 18th August, 1998 till 13th July, 1999, on account of his acute illness due to hepatitis. He had enclosed medical certificate in support thereof. This certificate has been issued by a Doctor on 13th July, 1999. According to the petitioner, the factum of illness was communicated by him by a registered letter and this was despatched on 18th August, 1998 itself. After recovery from his illness, the petitioner went to resume duty on 13th July, 1999. According to the petitioner, on that date itself, instead of allowing the petitioner to resume duty, he was served with a charge-sheet dated 24th November, 1998 and thereafter, he was asked to make a representation to the Manager, for allowing him to resume duty. He made the representation and then, he was asked to come again on a subsequent date, i.e. on 22nd July, 1999. On that date, he went there hoping that he would be allowed to resume duty, instead he was served with the impugned order of dismissal dated 18th June, 1999. All these things have been done at the behest of the respondent No.6, who is a party respondent in this matter.
Whereas, the version of the respondent authority is that the petitioner is a habitual absentee and, as such, the aforesaid charge-sheet was sent by registered post with acknowledgement due and this charge-sheet having found un-answered, an enquiry was decided to be conducted and so an officer was appointed. The Enquiry Officer served notices for hearing on diverse dates by registered post with acknowledgement due. In spite of dispatch of the notices, the petitioner did not turn up nor participated in the enquiry. It is said that the Enquiry Officer has found the petitioner guilty, and on the basis of the report of the Enquiry Officer and having considered his past record of repeated unauthorised absence, the impugned order of dismissal was passed.
It appears apparently from the records that the charge-sheet was issued and Enquiry Officer was appointed. Whether the enquiry was held or not, or for that matter, the Enquiry Officer submitted report or not, is not borne out of any records. In normal circumstances, the report of the Enquiry Officer should have been enclosed in the affidavit in opposition. Therefore, I cannot accept the version of the respondents that the Enquiry Officer submitted any report, upon enquiry being held. The Enquiry Officer has not come forward with an affidavit, corroborating the statements of the respondents.
Now, it has to be examined whether the charge-sheet was despatched to the writ petitioner, or for that matter, whether the writ petitioner received any charge-sheet, prior to 13th July, 1999 or not. The statements made by the respondents of despatching 4 and receipt of the charge-sheet by the postal mode of communication, has been seriously denied and disputed on behalf of the petitioner. It is pertinent to record that no acknowledgement due card has been annexed to establish the fact that the petitioner has received the charge-sheet. So, if there is denial of the fact of having received the charge-sheet, then the onus is upon the respondents to establish the fact, by obtaining a certificate from the postal authority, as to the delivery of the charge-sheet. This certificate is not there.
Having gone through the despatch slip, I find that the charge-sheet was despatched sometimes in 1999, i.e. 17th February, 1999. The Enquiry Officer is said to have despatched the notice of hearing on 30th January, 1999, fixing the date of hearing on 12th February, 1999. It is not clear when this notice was despatched. Next notice is confusing as on one hand, it is alleged that the petitioner did not attend on 26th February, 1999, on the other hand date of hearing is fixed on 26th February itself. This notice was despatched on 24th May, 1999. Third notice is more amazing as by this notice date of enquiry was fixed on 28th April, 1999, whereas the petitioner was asked to attend enquiry on 28th November, 1999 at 10 A.M. This notice was despatched on 15th June, 1999.
Therefore, all the aforesaid records clearly suggest that there was no despatch of any charge-sheet or any notice at all nor there was any enquiry. The statements and averments made in the petition that charge-sheet was not handed over to the petitioner before 13th July, 1999 and this was antedated and manufactured later on, appears to be correct. The respondent No.6 has not come forward to deny and dispute this positive statements made by the writ petitioner.
The affidavit-in-opposition has been filed by one Bakul Das, being the Constituted Attorney. She was not the respondent No.6 and she cannot say what had actually happened on 13th July, 1999. She has merely denied and disputed the statements made in paragraphs 9, 10, 11, 12 and 13 of the writ petition. Moreover, the statements made in paragraphs 14 and 15 of the affidavit in opposition are not verified at all. She has verified the other paragraphs, leaving aside paragraphs No.14 and 15. Paragraph 16 has been verified as based upon information derived from the records. As such, the denial made by the aforesaid deponent is not denial at all.
I believe and accept the statements made in the writ petition that when the petitioner went to resume duty on 13th July, 1999, the charge-sheet prepared and the order of dismissal already passed ex-parte were handed over to the petitioner. It is pertinent to record that the order of dismissal was passed, even by the respondent's own showing, without services of any further notice or without giving any hearing to the petitioner whatsoever, and even without supplying copy of the enquiry report.
As such, I have no option but to set aside the order of dismissal, as well as, the charge-sheet. The charge-sheet was fabricated and manufactured when the petitioner went to resume his duty. I would have asked the respondent authorities to proceed afresh because of this absence, but I find that the petitioner has annexed a document, 5 being the medical certificate of suffering from hepatitis and it was a contemporaneous document. The petitioner would have been given a chance to explain.
Under such circumstances, I set aside the charge-sheet and the order of dismissal, I direct the respondent authorities to allow the petitioner to resume duty. However, his period of absence shall be considered as leave, against medical leave, if due. If there is no medical leave due, then the petitioner shall be granted medical leave without pay.
The petitioner shall be allowed to resume his duty forthwith, immediately after communication of this order. The petitioner will be entitled to get back-wages in full, as there has been no disciplinary proceeding and there was no justification to deny employment to the petitioner. Such back-wages shall be paid to the petitioner within three weeks from the date of resumption of duty. The petitioner will also be entitled to costs, assessed at 300 G.M.s to be paid by the respondents to the petitioner.
Today, having heard Mr. Ghosh, the aforesaid judgement and order has been passed. However, the matter will appear once again on next Friday ( 17.06.2005), marked as "For Orders". On that date, the matter will be heard once again, if anybody appears on behalf of the respondents and if I find any justification to recall this order, then the same shall be considered.
Urgent xerox certified copy of this order, if applied for, be supplied to the applicants, expeditiously.
Sd/: K.J.Sengupta, J."
20.6.2005 W.P.7744(W) of 2001 Mr. Sandip Ghosh, Mr. Saikat Basu ..For petitioner.
Mr.A.K.Mitra, Mrs.P.Saha, Miss. S.Barman Roy.. For respondents On 13th of June, 2005, the matter was heard in extensor but the court heard the submission of the learned Counsel for the petitioner. On that date an adjournment was sought for but because of the objection of the petitioner, the Court could not grant any adjournment. On that date, I have considered the statements and averments of the writ petition as well as in the Affidavit-in-opposition but I did not have the advantage of hearing the submission of the learned Counsel for the respondent. For the interest of justice though I dictated the judgement and order on that date, I did not sign the same and kept the matter for hearing today in order to hear the non-appearing learned Counsel's submission. I thought that the learned Counsel for the respondent would be 6 able to change my mind by his submission. In pursuit of this venture, I took up hearing of this matter today once again.
The learned Counsel for the respondent submits that the writ petition should not be entertained in view of the existence of the alternative remedy as the petitioner is a workman within the meaning of the Industrial Disputes Act, 1947, so, the alternative remedy has been provided under Section 11A of the said Act. The petitioner is guilty of delay and laches as the order of punishment was passed in 1999 and he approached this Court in 2001. So, there has been no explanation for the delay. The learned Counsel for the respondent submits on merit that the charge-sheet was served by Registered Post with Acknowledgement Due Card and also by Certificate of Posting. In spite of despatch by the Certificate of Posting, the petitioner did not turn up. At all stages, notice of hearing was given, but the petitioner did not turn up. The petitioner is a habitual absentee and all the time he was also warned and in spite of this he did not make himself available. Under these circumstances, the respondent authority had no option but to proceed against him departmentally. The Enquiry Officer has found him guilty. After having accepted the report of the Enquiry Officer, a second show cause notice was served and it remained unreplied too.
In support of this plea of alternative remedy, he has relied on a Division Bench judgement of this Court rendered in the case of Eastern Coalfields Ltd. -vs.- Sushil Bowri and anr. and Eastern Coalfields Ltd. -vs.- Bagia Nayak and ors. being Appeal No.41 of 1996. In this judgement on identical fact it was held that the employee concerned should have approached the Tribunal concerned. I have considered the Division Bench judgement and in that case, it was found on the facts that the employee concerned should have approached the Tribunal. It is equally well settled law that alternative remedy is not an absolute bar in entertaining the writ petition, it is the discretion rather prudence of the writ Court as to whether despite existence of alternative remedy, the writ petition should be entertained or not. By the Apex Court now it has been authoritatively laid down as proposition of law in the matter of entertaining the writ petition where alternative remedy exists. The rule is that where there has been violation of the principles of natural justice, where there has been a complaint of infringement of fundamental and Constitutional rights and also in a case where there is adoption of unfairly procedural approach; in those cases as a matter of course the writ Court will not shut its doors to the suitors asking him to resort to the alternative remedy. The breach of the principles of natural justice and infringement of fundamental right are the exclusive subject matter to be decided by the writ Court in the public law field. The Tribunal cannot effectively decide the question in the public law field. Moreover, it is also settled law that when the writ petition has been entertained unconditionally and decided to be heard on affidavit, at the time of final hearing, the petitioner should not be nonsuited on the plea of alternative remedy. As such, the plea raised by the learned Counsel for the respondents is not accepted by this Court. On the ground of delay, in my view, writ petition is not dismissed always, the delay relates to the question of limitation, though Limitation Act is not applicable in terms, in the writ, however, it has been settled by the Apex Court that principles of limitation will also be applicable in a writ petition, had it been a case of the suit. The order of punishment was 7 passed in 1999. The writ petition was filed in 2001 and I think two years time taken by the petitioner is not unreasonable. In ordinary course the petitioner could have got 3 years time to challenge by taking action before the other forum, applying the time stipulated in the Limitation Act. The time taken by the petitioner for two years is not a matter of delay worth reckoned.
As far as the merit is concerned, regarding holding of enquiry and also taking decision of punishment, the same has been dealt with in detail in my findings previously. On merit today, the learned Lawyer for the respondents could not make any argument worth to change my mind. I, therefore, do not find any other reason or justification to upset my findings recorded earlier, though in his absence. Therefore, I retain my order passed on that date, that is 13th June, 2005.
Sd/: K.J.Sengupta,J."
On a bare reading of the order dated 20th June, 2005 and the earlier order dated 13th June, 2005 as passed, it appears that the learned trial Judge practically sat as a Tribunal over the decision of dismissal by scrutinising and verifying the different procedural rules as a fact finding body in exercise of the jurisdiction under Article 226 of the Constitution of India which, as per legal position, is not permissible. The present appellant raised the point of maintainability of the writ application which has been answered by the learned trial Judge negatively by holding that alternative remedy is not an absolute bar. There is no doubt in it that the High Court in exercise of the power under Article 226 of the Constitution of India has the jurisdiction to entertain any matter irrespective of existence of an alternative remedy, but that does not mean that High Court will exercise jurisdiction when there is a specific Act to adjudicate the matter by taking evidence of the parties in terms of the Industrial Disputes Act and/or any other Act. It is now the settled legal position that when there is an alternative efficacious remedy, the writ Court will be very slow to interfere with any order in exercise of its jurisdiction. Reliance may be placed to the case A. P. Foods -vs.- S.Samuelch and others reported in (2006) 5 SCC 469 where the Apex Court held that when a dispute could be resolved under the Industrial Disputes Act fulfilling the procedural law, 8 High Court was wrong to interfere with the order in the writ application to pass any order. The same view as expressed by the Apex Court was subsequently followed in the case reported in (2007) 2 SCC 112. The only exception that where alternative remedy either appeal or revision is nothing but approach to the Caesar's wife from the Caesar, in that case surely the writ Court will interfere. Reliance may be placed to the case Ram -vs.- Shyam Company reported in (1985) 3 SCC.267. It is an admitted fact as it appears from the respective affidavits filed by the parties that the writ petitioner is an workman and following the Standing Order the enquiry proceeding was initiated and thereafter an order of dismissal from service on the charge of unauthorised absence was passed. The learned trial Judge by scrutinising and verifying the different documents held that the notices were not duly served, no enquiry report was produced before the Court and that when on medical ground some one was absenting, that was required to be condoned. Even in the worse case when there is no enquiry at all and there is a clear breach of natural justice, the Apex Court answered the issue whether Industrial Disputes Act would be the appropriate forum to decide the issue or not in the case Bharat Forge Co. Ltd. -vs.- A. B. Zodge and another reported in (1996) 4 SCC 374 wherein in paragraph 7 the Apex Court held that even if there is violation of the natural justice or there is perversity in the finding of the disciplinary action as there is a right of the employer to adduce evidence in both the situations before the learned Tribunal, non-grant of such scope to the employer by the Tribunal itself was violative of the statutory provision of the Industrial Disputes Act. Paragraph 7 of the said judgement is quoted below in extenso for appreciation of the issue.
"7. A domestic enquiry may be vitiated either for non-compliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both the situations is well recognised. In this connection, reference may be made to the decisions of this Court in Workmen v. Motipur Sugar Factory (P) Ltd., State Bank of India v. R.K.Jain, Delhi Cloth and General Mills Co. v. Ludh Budh Singh and 9 Firestone Tyre Co. case. The stage at which the employer should ask for permission to adduce additional evidence to justify the disciplinary action on merits was indicated by this Court in Delhi Cloth and General Mill case. In Shankar Chakravarti case, the contention that in every case of disciplinary action coming before the Tribunal, the Tribunal as a matter of law must frame preliminary issue and proceed to see the validity or otherwise of the enquiry and then serve a fresh notice on the employer by calling him to adduce further evidence to sustain the charges, if the employer chooses to do so, by relying on the decision of this Court in the case of Cooper Engineering Ltd., has not been accepted. The view expressed in Delhi Cloth Mill case that before the proceedings are closed, an opportunity to adduce evidence would be given if a suitable request for such opportunity is made by the employer to the Tribunal, has been reiterated in Shankar Chakravarti case after observing that on the question as to the stage as to when leave to adduce further evidence is to be sought for, the decision of this Court in Cooper Engineering Ltd. has not overruled the decision of this Court in Delhi Cloth Mill case. There is no dispute in the present case that before the closure of the proceedings before the Tribunal, prayer was made by the employer to lead evidence in support of the impugned order of dismissal. Hence, denial of the opportunity to the employer to lead evidence before the Tribunal in support of the order of dismissal cannot be justified."
Hence it appears even if it is considered for argumendo that there was a violation of natural justice as urged by the respondent/writ petitioner which has been denied by the appellant by contending that enquiry proceeding was completed and reached its finality following procedures of law, still then there is finding by the learned Tribunal with reference to the industrial disputes that no enquiry was held, the present appellant would be entitled to produce additional evidence to justify the order of dismissal on the ground of unauthorised absence, hence entertaining of the writ in this situation would practically debar the statutory relief as available to the appellant. The views expressed in the Bharat Forge Co. Ltd. has been re-echoed by the Apex Court in the case Syndicate Bank -vs.- General Secretary, Syndicate Bank Staff Association reported in (2000) 5 SCC 65 wherein the Apex Court considered and answered the issue about the scope and limit of principle of natural justice by holding that in each and every case even if there is no enquiry proceeding properly held, it cannot be said as a breach of natural justice. The learned trial Judge came to the conclusion that there was no enquiry proceeding initiated on the premises by scrutinising all the 10 papers that notices were not properly served due to reason that no acknowledgement card was produced before the learned trial Judge in support of the contention made by the present appellant that all the notices of enquiry proceeding were duly served. The learned trial Judge practically shifted the onus upon the appellant to prove that the notices were served though it is settled legal proposition of law that if any notice is properly addressed and it is sent by Registered post, the legal presumption would be that the notice has been duly served which is a rebuttable presumption if anybody desires to say otherwise.
An exception to such proposition of law that such legal presumption could be challenged by adducing evidence by the concerned party, that is, the addressee concerned on proving the material facts that the postal document was not at all served upon him by adducing evidence. The learned trial Judge without discussing the legal presumption on the issue about proper service of notice held otherwise that the acknowledgement card since was not produced by the appellant, no notice was served. The learned trial Judge scrutinised the matter himself to hold that there was no unauthorised absence relying upon the medical certificate produced before him and thereby condoned such absence by declaring that the said period should be considered as leave and the writ petitioner/workman would be entitled to get full back-wages and would be allowed to join in the service. The findings and observation of the learned trial Judge is nothing but a decision sitting as an appellate authority over the decision of the Enquiry officer and the decision condoning the unauthorised absence period by accepting the medical certificate, in our reasoned view, was not permissible under the law. It appears from the Industrial Disputes Act that it is a full fledged code to deal with all the disputes as to be raised by the workmen. It appears that the Tribunal is empowered under Section 11A to decide the issue of back-wages on satisfaction of the conditions that during the period of absence the gentleman was not engaged in other place to earn money. 11 From the very framework of the Industrial Disputes Act, this Court is of the view that there is an alternative speedy and efficacious remedy and it is a complete code to adjudicate the industrial disputes. Identical question, namely, approach to Writ Court without applying before the Tribunal under Industrial Disputes Act is not entertainable, was considered by the Division Bench of the Calcutta High Court in the case Webel Video Devices Ltd. -vs.- Prasanta Kumar Das and others reported in 2007(3) CHN 8 wherein on identical situation the Division Bench of Calcutta High Court quashed the impugned judgement under appeal therein where the High Court sitting in the writ jurisdiction decided the issue of dismissal of a workman who admittedly did not approach the Tribunal under the Industrial Disputes Act. Therein the case of Premier Automobiles Limited -vs.- Kamlekar Shantaram Wadke of Bombay and others was relied upon. The said judgement is now holding the field wherein it has been held that all the disputes relating to the workmen to be raised under the Industrial Disputes Act for effective adjudication which is beneficial not only for the workmen concerned but also the employer. There is no doubt that the Industrial Disputes Act has laid down extensive machinery for settlement and adjudication of the industrial disputes and the parties will get opportunity to adduce evidence including additional evidence therein in respect of their respective contentions as to be raised therein. Hence it is an alternative forum with effective adjudicatory process to decide that question. Premier Automobiles Limited (Supra) has been followed subsequently by the Apex Court in the case of Rajasthan State Road Transport Corporation & Anr. -vs.- Krishna Kant & Ors. reported in 1999(5) SCC 75.
Having regard to the aforesaid legal principle we are of the view that the learned trial Judge was not correct to find that the alternative forum, namely, the forum of Industrial Disputes Act, would not be a sufficient forum. Furthermore, we are of the view that the learned trial Judge practically intended to decide the disputed question of fact about service of notice of departmental 12 proceeding, charge sheet as well as the second show cause to conclude the views as reached in a writ proceeding on the basis of affidavit evidence only.
Considering all the aspects of the matter, we are of the view that the impugned judgement under appeal is not legally sustainable and accordingly we set aside and quash the impugned judgement.
We are also of the view that the writ application is not maintainable in the High Court at Calcutta as the matter requires adjudication under the Industrial Disputes Act The writ application accordingly stands dismissed on the ground of maintainability.
(Pratap Kumar Ray, J.) I agree.
(Manik Mohan Sarkar, J.)