Orissa High Court
Regional Manager vs Trilochan Das & Anr. : Opp. Parties on 8 August, 2023
Bench: Biswanath Rath, M.S.Sahoo
ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.845 OF 2019
With
W.P.(C) NO.30253 OF 2022
In the matter of applications under Articles 226 and 227 of the Constitution of India.
In W.P.(C) NO.845/ 2019
Regional Manager, Indian Overseas Bank,
Bhubaneswar : Petitioner
-Versus-
Trilochan Das & anr. : Opp. Parties
For Petitioner : M/s.S.Udgata, A.Mohanty & A.Mishra
For O.Ps. : M/s.A.Mishra, R.K.Bose & A.K.Parida
In W.P.(C) NO.30253 OF 2022
Trilochan Das : Petitioner
-Versus-
Regional Manager, Indian Overseas Bank,
Bhubaneswar : Opp. Party
For Petitioner : M/s.A.Mishra, R.K.Bose & A.K.Parida
For O.Ps. : M/s.S.Udgata, A.Mohanty & A.Mishra
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH JUSTICE M.S.SAHOO Page 1 of 22 // 2 // Date of hearing & Judgment : 08.08.2023
1. W.P.(C) No.845/2019 is filed at the instance of the Management challenging the whole award dated 25.1.2018 passed by the Presiding Officer, CGIT-cum-Labour Court, Bhubaneswar in I.D.Case No.2/2000 at Annexure-5 whereas W.P.(C) No.30253/2022 is filed at the instance of the Workman represented through the second party confining a challenge to the award of compensation towards backwages aspect in the same award. Both the Writ Petitions since involve common parties, however, the challenge by such parties aims differently but there are common statement of claim, common written statement and evidence and the materials. Both these matters are taken up together and decided by this common judgment.
2. Background of the case is as follows :-
The Workman was an Employee of the Management herein. Being duly selected the Workman was appointed as Clerk-cum-Cashier- cum-Godown Keeper by the Regional Manager, Calcutta and posted as such in the Indian Overseas Bank, Bhawanipatna. While continuing as such, the Workman was transferred to Lanjigarh Branch in the same capacity. There again involves another transfer of the Workman to the Indian Overseas Bank, Bhubaneswar Branch. The Workman while so continuing was placed under suspension from his service on 14.11.85 on Page 2 of 22 // 3 // the allegation that he had clandestinely removed bank draft leaf no.OL/84/71946 from Draft Book at the Branch and filled up the draft in favour of one Sarat Kumar Pujapanda for Rs.16,000/- showing to be prepared on 17.4.1986 and Sl.No.19/42 and he had drawn the same at Sahid Nagar Branch of the Bank. He was charge-sheeted under the premises of misutilising the draft along with the forgery signature of the Branch Manager and the Accountant in preparing such draft. This led to a disciplinary proceeding by submission of charge-sheet on the Workman along with the suspension order dated 24.8.87. On being communicated with the charge-sheet and asking to show cause, the Workman submitted his show cause reply on 22.1.1988 completely denying the allegation. In conclusion of the enquiry, the Enquiring Officer submitted a report finding the Second Party to be guilty of the charges. The Workman has preferred an Appeal before the appellate authority. Material discloses, the Appeal was also dismissed. On the Workman preferring a Review Petition though the statement of claim indicated that the Review Petition was pending for disposal, however, there has been no further information as to the development, if any, involving such Review Petition. It is on the premises of completion of enquiry proceeding in half-hazard manner and without following natural justice, the Workman raised an industrial dispute. Since there was inordinate delay in making reference, it appears, the Workman was constrained to bring a Writ Petition to this Court being Page 3 of 22 // 4 // registered as O.J.C. No.5645/1994. Both the Parties made it clear to this Court that the said Writ Application was dismissed on 9.2.1995 and as a consequence of the direction in the above Writ Application, appropriate reference was made under the provision of Section 10(2-A) of the Industrial Disputes Act (herein after called as "the Act"). On 26.12.90/13.7.2000 for industrial adjudication of the following reference :-
"I) Whether the action of the Management of the Indian Overseas Bank in dismissing the Workman from his service of the Bank is justified?
II) To what relief the Workman is entitled to ?
3. Reference having been made, the Workman submitted statement of claim under the following premises :-
"9. That the Enquiry Officer did not take into account the relevant material facts of the depositions of the witnesses presented before him and failed to show impartiality in conducting enquiry. Irrelevant facts and inadmissible evidence for the purpose of the enquiry were taken into account against the Second Party.
10. That through all the witnesses adduce evidence in favour of the Second Party as to conduct and past service record that was not taken into consideration. Even there was no material as to ill-motive or intention of the Second Party to cause damage to the property of the Bank or prejudicial to the interest of the bank or causing serious loss to Bank the Enquiry Officer found the second party lack of integrity and conduct unbecoming of a bank employee.
11. That none of the provisions of the settled principles of law were adhered to before the commencement of enquiry. Even the appeal of the petition was not dealt with as per the guidelines and settlement.
12. That the established facts in the enquiry was not taken into consideration. The procedural latches of the Page 4 of 22 // 5 // Management and deviation of regular principle and practice of the bank which led to victimisation of the second party was not taken into consideration by the Enquiry Officer. Moreover, the mind of the disciplinary Authority who acted as Enquiry Officer has titled against the second party from the very beginning. As without authority, the enquiry officer initiated the proceeding the Second Party failed to get the fruits of justice and equity.
13. That so far as the basis or the source of the charge- sheet was not made known to the second party at the first instance available to the Management. And this latches on the part of the Management also led to failure of justice to the Second Party workman in the enquiry.
14. That the Enquiry Officer has not applied his judicious mind to the material particulars of the evidence. The evidences and documents placed in the enquiry if taken into consideration can under no circumstances prove the preponderance of probabilities.
15. That though there is no evidence regarding presentation of the called forged demand draft on the drawing bank it was held to be an act of attempt against the interest of the bank. On the contrary it is a proved case of the second party through the witnesses presented by the first party- Management that there cannot be any suspicion on the conduct of the Second Party Workman.
16. That so far as the dismissal of the appeal of the second party by the appellate authority is concerned the order of dismissal was not passed judiciously. Rather in a mechanical manner the appeal of the Second Party was dismissed in late."
4. Statement of claim is appearing at Annexure-1 to W.P.(C) No.845/2019.
5. Consequent upon service of statement of claim, the Petitioner in the first Writ Petition and the O.P. in the second Writ Petition in the capacity of Mandamus brought written statement, vide Annexure-2 to W.P.(C) No.845/2019. In their attempt to the opposition of reference and the statement of claim they challenged on the following grounds:-
Page 5 of 22// 6 // "14. That as regards the averments made at paragraph-1 of the statement of claims it is humbly submitted that the reference is bad on the ground of long delay of 12 years and lack of existence of industrial dispute. The 2nd party-workman is guilty of laches as he did not pursue his remedy with the ministry of labour and the learned industrial tribunal for early consideration of claim and hence the present claim made by the 2nd party-workman is liable to be rejected as stale and highly belated.
15. That the averments made at paragraphs-2 and 3 of the statement of claim are matters of records and do not need any comment, except that the allegations made at paragraph-3 are very serious in nature and derogatory to the standard of conduct expected of a bank employee.
16. That the averments made at paragraphs-4 and 5 of the statement of claim are matters of records. As already stated earlier the enquiry was conducted as per the provisions of the bipartite settlement and allowing all reasonable opportunities to the 2nd party-workman in due adherence to the principles of natural justice.
17. That the averments made at Paragraph-6 of the statement of claims are not all correct and such of the averments which are contrary to records are denied. It is humbly submitted that the 2nd party submitted an appeal dt.29.8.88 against dismissal order but not against the findings of the Enquiry Officer as stated wrongly. The appeal preferred by the 2nd party was duly considered by the Appellate Authority and disposed of on 29.11.88 confirming the punishment of dismissal. The appellate order is well reasoned and speaking order. It is denied that the review petition filed by the 2nd party is still pending for disposal with the 1st party-Bank. There is no provision under the bipartite settlement enabling a dismissed workman to seek review of the punishment and therefore there is no question of the Bank considering any review of the punishment nor the 2nd party could ventilate any grievance on this score.
18. That the averments made at paragraph-7 of the statement of claim are not correct and do not improve the case of the 2nd party as he had received the subsistence allowance as per the provisions and participated in the enquiry along with his defence representative. At any rate, there has never been any dispute pertaining the suspension/subsistence allowance at any time in the past.
19. That the averments made at paragraph-8 do not assist the 2nd party workman in any manner. The enquiry has been conducted adhering to the rules in that behalf set-out in the Page 6 of 22 // 7 // bipartite settlement. The 2nd party has never ventilated any grievance as regards the examination of any particular witness nor, there has been any deviation in the examination of M.Ws.
in the domestic enquiry. At any rate, he was free to examine any witness in his defence in the enquiry proceeding. Examination of number of witnesses or any particular witness in order to establish the charges cannot be at the desire of the 2nd party-workman. Of course, for non-examination of any particular witness for which the charges may not be fully established, the 2nd party could always take advantage of the same. But in the present case the charge having been established, the 2nd party-workman cannot derived any benefit by alleging that so called star witness has not been examined in the enquiry. If anything of the type has happened, the workman can always capitalise from such lapses.
20. That the averments made at paragraph-9 and 10 of the statement of claim are vague and/or incorrect. The 2nd party- workman should have substantiated his contention as to which relevant material fact of the deposition of the witnesses was not taken into consideration by the Enquiry Officer. He has also not given any account at to which irrelevant fact was taken into account by the Enquiry Officer against the 2nd party. It is submitted that the Enquiry Officer has taken into account all material evidence both oral and documentary, placed in the enquiry and after duly considering the same he came to the conclusion that the charges framed against the 2nd party were fully established. The allegation that the Enquiry Officer failed to show impartiality in conducting enquiry is not only subjective and unsupported by materials, but is totally false and hence denied. There is no presumption that past records of an employee which was not tainted with same, would continue to be good at all future time. If any charge is established based on materials on record, the plea of past good conduct loses its credibility. In the present case the charges proved against the 2nd party were serious. The Bank cannot retain such person of doubtful integrity, in service as this will be prejudicial to the interest of the Bank. The mere fact that there was no loss to the Bank will not justify the serious misconduct committed by the 2nd party involving in deceitful activities of the nature as in the present case. The Bank thrives on public good will and integrity of the bank employee is the paramount consideration to command faith of his employer. An employee who ventures to stealthily remove important material and forge signatures of other officials in preparing a document by which the bank could be defrauded of money to the tune of Rs.16,000/- cannot have any right to defend himself to continue in bank service. Exhibition of such conduct by a bank employee is grave enough to render him unworthy of bank service and untrust- worthy of reposing confidence on him and entrusting him duties in a bank.
Page 7 of 22// 8 //
21. That the averments made at paragraph-11 of the statement of claim are evasive and imaginary and hence denied. As already stated earlier the principles of natural justices and provisions contained in bipartite settlement were fully followed while holding enquiry against the 2nd party. It is denied that principles of law were not adhered to before commencing the enquiry. The 2nd party has not stated that principles of law were not adhered to the enquiry has been initiated and concluded in conformity of the procedure laid down in the bipartite settlement. It is denied that the appeal of the 2nd party was not dealt with as per guidelines of settlement. The Appellate Authority fully considered the relevant materials on records of the enquiry and came to the right conclusion that the 2nd party was guilty of charges.
22. That the averments and allegations made at paragraph-12 of the statement of claim are vague, unsustainable and incorrect and hence, denied. The 2nd party has not stated which facts were not taken into consideration by the Enquiry Officer. He has also not mentioned what were the procedural lapses and deviation of regular principles and practice of the Bank in the matter of disciplinary proceeding. It is asserted that the proceeding against the 2nd party has been followed conforming to the procedure laid down in the bipartite settlement. It is denied that the mind of the Disciplinary Authority tilted against the 2nd party from the beginning as alleged. It is humbly submitted that the Disciplinary Authority acted in fair and impartial manner in conducting the enquiry in conformity with the procedure as per the rules. It is also denied that the Enquiry Officer acted without authority, as alleged. In terms of provisions contained in the bipartite settlement, Sri V. Srninvasalu was appointed as Enquiry Officer and he was himself the Disciplinary Authority. As per bipartite settlement the Chief Executive of the 1st party had issued circular appointing Sri V. Srinivasalu as Enquiry Officer and he had full authority to hold enquiry and to pass necessary orders imposing punishment. This is in conformity with the provisions of the bipartite settlement. Hence, it is incorrect to state that the Enquiry Officer acted without authority.
23. That the averments and allegations made at paragraph-13 of the statement of claim are not correct and hence denied. The charge-sheet was specific and descriptive so as to be understood in its meaning and purport. The charges framed against the 2nd party were fully established by the oral and documentary evidence placed in the enquiry by the Management and the 2nd party had been extended ample opportunity to meet and defend his case. In the circumstances, there was failure of justice meted out the 2nd party-workman in the enquiry, as alleged. The allegations are neither real nor convey any specific meaning.
Page 8 of 22// 9 //
24. That the averment made at paragraph-14 of the statement of claim are vague and also not correct and hence, denied. It is submitted that the Enquiry Officer fully applied his mind to the material evidence available on records while coming to definite conclusions. It is denied that the evidence and documents placed in the enquiry have not proved the guilt of the 2nd party, as alleged. On the other hand the charges have been fully established in the enquiry on the basis of material legally brought on records of the enquiry.
25. That the averments made at paragraph-15 of the statement of claim are not correct and hence denied. The fact that a draft leaf was removed by the 2nd party and fille in him and the signatures of the management and accountant were forged, have been fully established in the enquiry. Merely because the spurious demand draft for an amount of Rs.16,000/- was not presented for payment, does not absolve the 2nd party of the seriousness of the misconduct committed by him in unauthorisedly removing the documents and forging signature of the other officers of the Bank and his preparations for defrauding the Bank by Rs.16,000/-. The averments in this paragraph by no stretch of imagination would render the activities and conduct of the 2nd party innocent merely because he was caught before he had presented the draft for encashment.
26. That the averments made at paragraph-16 are not correct. The order passed by the Appellate Authority is well reasoned and a speaking order. It has not been passed mechanically as alleged. It is denied that the same was not passed judiciously.
27. That the averments made at paragraph-17 of the statement of claim are not correct and denied. The punishment of dismissal as inflicted on the 2nd party is warranted and justified taking into consideration the seriousness of the misconduct committed by him. The 2nd party stealthily removed the blank demand draft leaf from the custody of the branch and forged it to appear as if it was true one and forged signatures of the Branch Manager and Accountant. Such serious acts of misconduct warrant detergent penalty. The 2nd party who was a bank employee was expected to have highest degree of integrity but he was found to be totally untrustworthy by betraying the confidence of the employer. Hence, the punishment inflicted on the 2nd party is well merited in the facts and circumstances of the case. It is asserted that there has been no infraction of para 17.12(C) of the settlement as alleged or that any alleged deviation shall render the final action invalid.
Page 9 of 22// 10 //
28. That no relief as prayed for, or at all, it available to the 2nd party and the prayer made in the statement of claim be negatived.
29. That the 1st party has conducted a fair enquiry preceding the dismissal of the 2nd party from service under the 1st party, it is humbly submitted that the learned Tribunal may be pleased to take up the fairness of the enquiry as a preliminary issue and in case for any reason, what-so-ever, it is adjudged that the enquiry is not fair and proper, the 1st party may be permitted to substantiate the charges by leading fresh/additional evidence."
There is material disclosure that there has been also adducing of evidence both in pre and post phase hearing. As an outcome there has been allowing of answering of reference in positive in favour of the Workman, while observing there is no fair conducting of the disciplinary proceeding, the Labour Court held, the dismissal of the Workman since illegal and unjustified, considering the Workman had already superannuated in the meantime since November, 2015, in its award dated 25.1.2018 granted by way of relief payment of 50% of his entitled wages, for the period from the date of his dismissal to the date of his superannuation and other consequential service benefits to which the Workman would have been entitled to at the time of superannuation in the event of his continuance in service. It was also further directed, the award, vide Annexure-5 was to be complied with within three months from the date of its notification in the official gazette, failing which the Workman was to be entitled to receive the accrued amount with simple interest of 9% from the date of award.
Page 10 of 22// 11 //
6. As stated earlier both the Management as well as the Workman have come in two different Writ Petitions indicated herein above. The Management in the first Writ Petition challenged the award at Annexure-
5 on the following grounds :-
"9) That the petitioner respectfully submits that the learned Tribunal failed to appreciate that the domestic/disciplinary inquiry cannot be said to have been not properly held if (i) the employee proceeded against has been informed clearly of charges levelled against him, (ii) the witnesses are examined ordinarily in the presence of the employee- in respect of the charges, (iii) the employee is given a fair opportunity to cross examine witnesses, (iv) the employee is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the inquiry officer records his findings with reason for the same in his report.
10) That the petitioner respectfully submits that the learned Tribunal failed to appreciate that there was no failing on any of the aforementioned condition, the inquiry proceeding was held in due compliance with principle of natural justice and the industrial dispute between the Indian Overseas Bank Ltd and its workmen as amended from time to time hereinafter called in short the disciplinary action and procedure threfor. True copies of the said enquiry proceeding and the relevant extract of the settlement for the industrial dispute between the Indian Overseas Bank Ltd and its workmen are annexed hereunto and marked as Annexure-6 & 7 Series.
11) That the petitioner respectfully submits that the learned Tribunal failed to appreciate from the materials available on record that the workman did not cross examine the 4th witness who was the investigating officer in the CBI Case in spite of receipt of copy of deposition and several opportunities extended to him.
12) That the petitioner respectfully submits that the learned Tribunal failed to appreciate that rules of evidence do not apply to departmental enquiries, wherein the only test is compliance with the principle of natural justice and rules governing the enquiry. Hence the disciplinary authority is well within his rights to act upon the statement made by the witnesses voluntarily before the investigating officer of the CBI during the course of interrogation.
13. That the petitioner respectfully submits that the learned Tribunal failed to appreciate from the material available on record that the workman admitted to have the list of witnesses and documents including the demand draft and at no point of time raised any objection in this regard.
Page 11 of 22// 12 //
14) That the petitioner respectfully submits that as per the disciplinary action and procedure therefor, the appointment of presenting officer is not provided and the disciplinary authority can act as inquiring officer and in the instant case the disciplinary action and the inquiry has been done by a duly notified officer as per the disciplinary action and the inquiry has been done by a duly notified officer as per disciplinary action and procedure therefor.
15) That the petitioner respectfully submits that pursuant to the said disciplinary action procedure, the person competent to take disciplinary action and hold inquiry have been duly notified. A true copy of the said notice in favour of the disciplinary authority is annexed hereunto and marked as Annexure-8.
16) That the petitioner respectfully submits that after following the due procedure and observance of natural justice at every stage of inquiry the workman was dismissed from service and the workman preferred an appeal before the competent authority. The appellate authority on due consideration of the appeal filed by the workman and the material available on record confirmed the order of punishment of dismissal and dismissed the appeal. True copies of the said appeal preferred by the workman and the order of the appellate authority are annexed hereunto and marked as Annexure-9 Series.
17) That the learned Tribunal failed to taken into consideration the contention of the said appeal preferred by the workman and marked as Ext-9/31 where the workman clearly admitted to his lapses and assured not to repeat the same in future.
18) That the petitioner respectfully submits that the impugned finding of the learned Tribunal is perverse in as much as the copy of the bank draft filed in Tribunal was marked Ext-10 without objection. True copy of the said bank draft is annexed hereunto and marked as Annexure-10.
19) That the petitioner respectfully submits that the learned Tribunal failed to appreciate that the delay in filing the ID Case No.2 of 2000 caused severe prejudice to the petitioner in as much as most of the material witnesses have retired. A few of them expired in the meanwhile and there is immense difficulty in retrieving the old record subject matter of CBI investigation as well as disciplinary proceeding held long back.
20) That the petitioner respectfully submits that the learned Tribunal committed jurisdictional error in granting the workman 50% of his entitled wages and other consequential benefits even though the workman has not pleaded of his neither being gainfully employed nor employed for lessor wages.
21) That the petitioner respectfully submits that the learned Tribunal ought to have declined to grant back wages to the workman in the facts and circumstances of the case.
22) That the petitioner respectfully submits that the learned Tribunal committed grave illegality in not granting adequate opportunity to the petitioner to prove its case by bringing in the Page 12 of 22 // 13 // witnesses and the old documents in an ID Case initiated by the workman belatedly twelve years after his dismissal from service.
23) That the petitioner respectfully submits that the learned Tribunal committed grave illegality with material irregularity in not considering the notes on submission filed by the petitioner.
24) That there being no alternative efficacious remedy the petitioner move this Hon'ble Court for appropriate relief(s) enumerated hereunder."
7. Similarly the Workman bringing the subsequent Writ Petition confined its challenge to the quantum aspect only on the following grounds:-
"10. That, it is not out of place to mention here that while considering the case on its proper perspective and on the basis of documents available, the learned CGIT, Bhubaneswar though categorically observed that the Departmental enquiry was not conducted in a fair and proper manner with conformity with the principle of natural justice as well as, the enquiry has not conducted by the Enquiry Officer. Even though ample opportunity was provided to the Opposite Party-Management Bank. Therefore, the award dated 25.01.2018 is bad, illegal, improper, unjust and liable to be set aside.
11. That, as per the settled principle of laid down in many judicial pronouncements that the Enquiry Officer to any enquiry is always acted as an Umpire being an impartial person to adjudicate the dispute. But in the present context, it is the specific observation of the learned CGIT that the Enquiry Officer have played a triple roles during course of enquiry by acted himself as Disciplinary Authority, Enquiry Officer and Presiding Officer. So, on this ground though the finding of the Tribunal is in clear cut affirmation, but awarding benefit of 50% of entitlement of wages with other consequential benefit instead of 100% entitlement of wages is not correct and that portion indicated at para-11 of the Award be set aside and modified to 100% of entitlement.
12. That, even though in the Award, preliminary issue was framed on fairness and propriety of the domestic enquiry, but the Management did not availed the opportunity to cross- examine the Workman-Petitioner for which the evidence on affidavit remains unchallenged and uncontroverted. So, on that basis also the 100% entitlement should have been awarded by the learned CGIT. But restricting to 50% Award is not correct and required to be modified.Page 13 of 22
// 14 //
13. That, apart from the other issues, when it is found and established from record that the enquiry has been found defective due to non-compliance of natural justice, thereby the dismissal from service was not proper. Furthermore, during enquiry also the forged Bank Draft Leaf was neither produced nor any explanation to that effect was also advanced by the Management-Opposite Party. Therefore, the entire charge against the Petitioner-Workman is appears to be baseless and concocted.
14. That, furthermore, it was not established during course of enquiry that the Management-Opposite Party do not make out any prima facie of serious misconduct being committed by the Petitioner-Workman, but the finding of the Disciplinary Authority was based on mere surmises and conjecture for which the Award to pay 50% of the Entitlement wages from the date of dismissal to date of retirement is not proper and required to be modified.
15. That, though the Petitioner-workman was suspended on 14.11.1986, but the charge-sheet was submitted on 24.08.1987. But the enquiry could not be conducted in time, due to negligence in part of the Management-Opposite Party for which the innocent Petitioner-Workman should not suffer. As a result, the operating portion of the Award at para-11 is required to be modified in the interest of justice.
16. That, it is also apt to mention here that when Management-Opposite Party could not established the charge against the Petitioner-Workman beyond reasonable doubt by way of producing cogent evidence. In that event, the Workman-Petitioner should not suffer due to latches of the Management-Opposite Party. Therefore, the Petitioner- Workman is entitled to 100% of wages from the date of dismissal till the date of retirement.
17. That, it is further to submit here that when the Management-Opposite Party have himself failed to the charges levelled against the Petitioner-Workman by way of domestic enquiry, but latter on finding of the learned Tribunal about payment of 50% of the entitled wages is not correct and liable to be modified.
18. That, it is also the trite of law that any delinquent/ Workman should not suffer due to delay and latches for which the party concern like the Petitioner is not responsible. In that event the learned Tribunal in a pragmatic approach should have Award 100% admitted wages for which the operative portion of the Award at page-11 is not proper, required to be modified in the interest of justice.Page 14 of 22
// 15 //
19. That, it is not out of place to mention here that when the duty cast upon the Disciplinary Authority to prove the charges beyond reasonable by adducing cogent evidence, but non-exhibiting the evidence in support of the charges, the Petitioner-Workman have honorary discharge/ exonerated from the liability but passing of Award by the learned Tribunal restricting the benefit to 50% instead of 100% is not sustainable and liable to be modified.
20. That, in view above facts and circumstances, the Petitioner-Workman feels it justify approaching this Hon'ble Court under Article 226 and 227 of the Constitution of India for justice and efficacious remedy by way of exercising the extraordinary plenary power of this Hon'ble Court."
8. Mr.A.Mohanty, learned substituted counsel appearing for the Management taking this Court to the stand of the Management through the written statement filed in the industrial adjudication and the grounds taken note herein took support of the above in assailing the award involved herein. Mr.Mohanty took us to the discussions, findings and observations of the Industrial Adjudicator in his attempt to establish his case. Mr.Mohanty attempted to contend that the adjudication of the Industrial Adjudicator is bad in law and prayed for setting aside the same.
9. Mr.A.Mishra, learned counsel for the Workman similarly taking this Court to the reasoning in the statement of claim further taking support of the grounds in its Writ Petition and taking this Court again to the observation of the Industrial Adjudicator attempted to satisfy that there has been less payment towards backwages.
10. It is keeping in view the rival contentions of the Parties, this Court finds, undisputedly the dispute already involved a disciplinary proceeding proceeded up to Appellate stage, proceeded up to Review stage, however Page 15 of 22 // 16 // with concrete information as to confirmation of the order of the Disciplinary Authority. This Court in the above background finds, in examining the reference involved, the Labour Court was right in entering into first determining the fairness in the disciplinary proceeding. In his proceeding to find fairness in the disciplinary proceeding to lead to final outcome in the industrial adjudication, the Labour Court asked both the Parties to lead their evidence to substantiate their respective pleas on the validity of the disciplinary proceeding. Based on submission of the learned counsel for the respective Parties and materials brought through the evidence led by both the Parties answering on the question as to whether the domestic enquiry conducted against the Workman was fair and proper? framed as Issue No.1 in the industrial adjudication, the Labour Court has the following observations :-
"8. Coming to the fresh evidence directly led before this Tribunal by the Management for establishing the misconduct of the workman it is seen that the Management has depended upon the oral testimony of M.W.-1, who is stated to be working along with the disputant workman in its Sahidnagar Branch at the relevant time and the domestic enquiry proceeding file marked as Ext.-9/01 to 9/32 in view of the principles and observations made by the Hon'ble Apex Court as discussed in supra there is no confusion to say that evidence or materials led before the enquiry officer except the documents led and exhibited before this Tribunal are anyway helpful to the Management to prove the misconduct of the workman. Admittedly, the forged Bank draft leaf in original has neither been produced before this Tribunal nor any explanation has been led as to where-about of the said forged Bank draft. Though, M.W.-1 has made a statement that the draft the leaf was stolen by the disputant workman, he has admitted to have not seen the workman stealing the same. On the other hand, it is emerging from the cross examination that the concerned Bank draft book was with him when the draft was stated to have been stolen. There is Page 16 of 22 // 17 // nothing specific either in the oral evidence of the M.W.-1 nor in the departmental proceeding file to suggest that the stolen Bank draft after being filled-up in favour of Shri Sarat Chndra Pujapanda was ever in possession of the disputant workman. It is not also in evidence of the Management led before this Tribunal or any paper exhibited along with departmental proceeding file to arrive any conclusion that the CBI had recovered the forged draft from the possession of the workman. It emerges from the oral testimony of M.W.-1 that the departmental proceeding was initiated against the workman after he was being entangled by the CBI in an investigation carried against stealing of such Bank draft was sent along with the hand-writing of the disputant workman for examination by a hand writing expert, no evidence is produced before this Tribunal to show the opinion of the hand writing expert. There is no material or evidence at all on behalf of the Management to establish that the hand-writing found in the Bank draft leaf belonged to the hand-writings of the disputant workman. He was never entrusted any Bank draft book and it is stated that such books are being kept in the lock and key of the Management- Bank. The Management is also unable to say as to the result of the case against the disputant workman initiated by the CBI. Thus, the materials and evidence led before this Tribunal by the Management do not make out any prima facie case of serious misconduct being committed by the disputant workman and he appears to have been held guilty of misconduct on mere suspicion only.
9. In domestic enquiry the strict rules of evidence are not applicable and guild need not be established beyond reasonable doubt. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided; it has reasonable nexus and credibility. But in the instant case the findings of enquiry officer appears to be without any evidence. So also the Management has failed to led any probative materials before the Tribunal to hold the disputant workman either to have stolen the Bank draft leaf of in possession of the same or the entries and hand-writing found thereon was the hand-writing of the disputant workman. Hence, it can be held safely that the Management has failed miserably to establish the misconduct of the workman and as such the dismissal of the workman cannot be said legal and justified in any manner."
11. Reading the aforesaid, this Court observes there has been clear finding by the industrial adjudicator holding the disciplinary proceeding involved herein is unfair. For the fact-finding observation of the industrial Page 17 of 22 // 18 // adjudicator with sound reasoning, this Court finds, there is defect in entering into the questions raised by the Management in exercise of writ jurisdictional power of High Court. It is in the circumstance and for the clear finding of the Labour Court, this Court finds, there was no other alternative on the part of the industrial adjudicator, the Labour Court to come to hold, the disciplinary proceeding involved herein remains unfair and accordingly compelled to answer Issue No.I in favour of the Workman.
12. In the circumstance, this court finds, there is no scope for entertaining the Writ Petition at the instance of the Management, which is hereby dismissed for having no merit.
13. This Court is taking up two Writ Petitions together as indicated herein above. The first Writ Petition bearing W.P.(C) No.845/2019 is at the instance of the Management involving the same award dismissed as held in the paragraph above. So far as W.P.(C) No.30253/2022 is concerned, this Writ Petition as already disclosed herein above at the instance of the Workman confining to the part of the grant of relief as a consequence of industrial adjudicator holding the disciplinary enquiry is unfair and as a consequence directing reinstatement of the Workman with grant of backwages @ 50% for the period the Workman was prevented from working unlawfully.
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14. Coming to deal with the above, keeping in view the rival contentions of the Parties in this regard, this Court finds, this issue has been taken care of by the industrial adjudicator all through. In its answer to Issue No.II & IV, Issue No.IV particularly keeping in view the challenge of the Management on the maintainability of the reference for the industrial dispute raised at a belated stage came to give its finding at Paragarph-10 taken down as herein below :-
"10. Challenge has been made to the maintainability of the reference on the ground of the industrial dispute being raised at a belated stage i.e. after lapse of twelve years from the order of dismissal of the disputant workman. Undisputedly the workman was dismissed from service on 17.07.1988 and the reference was made to this Tribunal on 26.12.1990. Though, pleadings have been advanced in the statement of claim that the workman raised a dispute timely and preferred writs before the Hon'ble High Court of Orissa challenging the action of the Management, any evidence either in shape of document or in oral has been led before this Tribunal in regard to the reason of the reference being made to the Tribunal after such lapse of twelve years. At the same time it cannot be over-sighted that the limitation Act, 1963 is not applicable to the reference made under the Act. However, delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. It is profitable to mention here that in the case between Ajaib Singh- versus- The Sirhind Co-operative Marketing Cum-Processing Service Society Limited and Another (1996) 6 SCC 82 while dealing with similar plea of delay in raising the dispute have opined that relief cannot be denied to the workman merely on the ground of delay, stating that:-
"It follows, therefore, that the provisions of Article 137 of the Schedule of Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the Page 19 of 22 // 20 // tribunal, Labour Court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages. It is also well settled that when the order of discharge or dismissal of a workman is found to be illegal and unjustified, the powers of the adjudicator are wide enough to grant the relief to the aggrieved workman {(Rambhau - versus - Maharashtra State Road Transport Corporation (1992) 2 LLI 872, 880 (Bomb)} can be reinstatement with back wages or it may even be of a part of back wages in the case if the workman was not wholly blameless. Lump-sum compensation in lieu of reinstatement or back wages can be also awarded. The power to give these reliefs is inherent in industrial adjudication. It is well settled that before exercising its judicial discretion the Tribunal or Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before granting relief in an industrial dispute usually followed."
15. Reading the aforesaid, this Court finds, for the factual scenario involved herein, there cannot be any fault found with the Workman on his attempt before the Industrial Adjudicator and the delay caused by the Central Government being the appropriate Government, even then the Labour Court here has come to grant 50% of backwages. This Court here further observes, in the entire reading of the statement of claim and the Writ Petition at the instance of the Workman, further the counter affidavit at the instance of the Workman to W.P.(C) No.845/2019 nowhere finds any averment or pleading of the workman disclosing he remained wholly unemployed all through. It is in the above background of the matter, this Court finds, grant of 50% of backwages by the Labour Court is well justified.
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16. In the circumstance, this Court finds, there is no substance in W.P.(C) No.30253/2022, which is accordingly dismissed.
17. Thus while dismissing both the Writ Petitions for having no merit, this Court here finds, by order dated 18.3.2019 passed in W.P.(C) No.845/2019, there has been grant of interim stay of operation of the award dated 25.1.2018, vide Annexure-5, which order is continuing as of now. This Court thus finds, for there is stay of operation of the impugned award passed by this Court, the benefit followed through the award could not be released in favour of the Workman. At the same time, for the interim protection in favour of the Management, there is bona fide retention of the benefit through the award by the Management. This Court here also considers the plight of the workman for not able to enjoy the fruit of the award for such long period, benefit falling through the award may be for the reason of interim protection of this Court.
18. Considering the benefit accrued through the award is at the hand of the Nationalised Bank, it is here keeping in view the interest of the Workman in the minimum, the workman will be entitled to interest @ 5% per annum on the amount involving the award from the date of filing of W.P.(C) No.845/2019 on 11.1.2019. It is made clear, if the entitlement of the Workman falling through the award involved herein is not released within a period of one month, he will also be entitled to interest @ 9% per annum from the date of award.
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19. As a word of caution in the case of staying the benefits through industrial adjudication, for the opinion of this Court, we should be careful enough while staying the award of this nature involved at least to ensure keeping the benefit falling through the award in Fixed Deposit to appropriately benefit the Party in win.
20. Both the Writ Petitions stand dismissed but however in the circumstance, there is no order as to cost.
(Biswanath Rath) Judge (M.S. Sahoo) Judge Orissa High Court, Cuttack.
The 8th August, 2023/M.K.Rout, A.R.-cum-Sr.Secy.
Signature Not Verified Digitally Signed Signed by: MANOJ KUMAR ROUT Reason: AuthenticationLocation: High Court of Orissa Date: 14-Aug-2023 14:51:38 Page 22 of 22