Calcutta High Court
Sri Pradip Kora vs Coal India Limited & Ors on 7 May, 2008
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P. No. 2136 of 2005
Sri Pradip Kora
Vs.
Coal India Limited & Ors.
For the Petitioner: Mr. Subrata Ganguly.
For the Respondents: Mr. Raja Basu Chowdhury.
Judgment on : 07.05.2008.
S.P. Talukdar, J.: With the Nationalization of Coal Industry in 1974, the petitioner as well as hundreds others became employees of the Coal Industries under the Government of India. In order to take better care of the health of such workmen in the collieries, a Social Security Scheme was framed by the Coal India Limited. The petitioner became a victim of the poisonous gas of the colliery mine and in 2001, he was treated by the Doctors of the colliery as well as Doctors from outside. Petitioner became a victim of severe Tuberculosis. It damaged his respiratory system so much that it became difficult for him to perform his day-to-day work.
By letter dated 19th October, 2004, he intimated the Manager of the Colliery that due to such serious ailment like respiratory trouble and pulmonary tuberculosis, he was not in a position to discharge his day-to-day service. He brought it to the notice of the authority that apart from being treated in various places, he was also under treatment in the Government Hospital i.e. Asansol Sub-Divisional Hospital. He requested his authority to accept the letter as 'sick information to the company' and prayed for grant of 50% wages as idle wages available to sick employee. The respondent authority received the letter on 19.10.2004, but issued the charge sheet against the petitioner on 23.3.2005 on the ground that petitioner had been absenting himself from duty w.e.f. 17.3.2004 till 23.3.2005. The petitioner gave reply to the charge sheet on 25.3.2005. He referred to his various ailments and the treatment, which he had to undergo. He requested the authority concerned to allow him to join duty as early as possible after revoking the charge sheet and the proposed departmental proceeding.
On 24th September, 2005, the General Manager of Satgram Area, by a letter sent the finding of the Enquiry Officer and asked the petitioner to give reply within 72 hours of receipt of the letter. The fact that a sum of 50% of the monthly wages used to be paid to the petitioner and that he was allowed to be treated in the colliery hospital, which could only be possible with the knowledge of the management, was, thus, not taken into proper consideration. The said departmental proceeding was initiated in a vindictive manner only in order to dismiss the writ petitioner from service. The petitioner is out of employment since 2002. He was given T.B. Khoraki for maintaining his family during certain periods in 2002-2003. From the year 2005, the petitioner was not even given the idle wages. The charge sheet issued against the petitioner for his absence during the period from 17.3.2004 to 23.3.2005 is bad and illegal as during the years 2003-2004, the petitioner was given idle wages by the respondent company. The petitioner approached the authority for allowing him to join his duty but to no avail. The departmental proceeding is illegal and it was completed with vengeance and without complying with the principles of natural justice. The petitioner, in such circumstances, approached this Court with the prayer for directing the respondent authorities to allow the writ petitioner to resume his duty and to pay his arrear remuneration as T.B. Khoraki for the period from January, 2005 till date. The petitioner also sought for order directing the authority not to proceed with the departmental proceeding any further in connection with the charge sheet dated 23rd March, 2005.
Respondent authority contested the case by filing an Affidavit-in-Opposition wherein all the material allegations made by the petitioner were denied. It was alleged that the writ petitioner had been absenting himself from duty without any necessary sanction or intimation from 17th March, 2004, thereby compelling the authority concerned to issue charge sheet dated 23rd March, 2005. An Enquiry Officer was duly appointed and in connection with the said proceeding, the petitioner admitted that he had absented himself from duty without permission. The petitioner did not attend duty even for a day in 2001. In 2002, he attended duty for 33 days and in 2003, 37 days. During the entire year, 2004, he attended duty for 4 days.
After completion of the enquiry, the petitioner was supplied with the report of the Enquiring Officer under cover of a letter dated 24.9.2005. The petitioner did not give any reply to the same. The competent authority, by communication in writing dated 19.11.2005 after agreeing with the finding of the Enquiring Officer, dismissed the petitioner from service.
The petitioner is a workman within the meaning of the Industrial Disputes Act and as such, he can agitate his claim and can challenge the order of dismissal by raising an industrial dispute. The present writ application, thus, does not deserve to be entertained in view of availability of an alternative efficacious remedy.
The medical certificates and the prescriptions cannot lend much support to the claim of the writ petitioner that he had been suffering from serious ailment like pulmonary tuberculosis. It was further claimed that the petitioner in connection with the enquiry proceeding admitted that he absented from duty in an unauthorized manner and without any permission of the authority. Such respondent authority claimed that the enquiry was held in accordance with the rules and in compliance with the principles of natural justice.
Mr. Ganguly, appearing as learned Counsel for the writ petitioner, submitted that the management failed to appreciate the difficulty of the writ petitioner in its proper perspective.
Attention of the Court was invited to the copies of various correspondences and documents in support of the contention that there could be no wilful laches on the part of the writ petitioner, who was prevented from discharging his duties or attending office due to circumstances beyond his control. On the other hand, Mr. Basu Chowdhury, appearing as learned Counsel for the respondent authority, challenged the maintainability of the writ petition on the ground of availability of an alternative efficacious remedy.
In this context, Mr. Basu Chowdhury invited attention of the Court to the Division Bench judgment of this Court in the case of Webel Video Devices Ltd. Vs. Prasanta Kumar Das & Ors., as reported in 2007(3) CHN page-8. Their Lordships in the said judgment referred to the decision in the case of Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay & Ors., as reported in 1976(1) SCC 496. In the said case it was held that the object of the Industrial Disputes Act is to make provision for the investigation and settlement of industrial disputes, which means an adjudication of such disputes. It was held to be an extensive machinery provided for settlement and adjudication of the industrial disputes.
The principles laid down in the said case are as follows:-
" 1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the Civil Court.
2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
4) If the right which is sought to be enforced is a right created under the Act such as Chapter-VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be."
In the case of Rajasthan State Transport Corporation Vs. Krishna Kant & Ors., as reported in 1995(5) SCC 75, the principles as laid down in the case of Premier Automobiles Ltd. were taken into consideration. In matters of industrial dispute, the Supreme Court held that the recourse to a Civil Court is not permissible. It was further observed that the idea in enacting the Act has been to provide a speedy, inexpensive and effective forum for resolution of disputes arising between the workmen and the employers and the idea has been to ensure that the workmen do not get caught in the labyrinth of the Civil Courts with their layers upon layers of appeals and revisions and the elaborate procedural laws.
Mr. Basu Chowdhury referred to the decision in the case of A.P. Foods Vs. S. Samuel & Ors., as reported in (2006) 5 SCC 469 in support of his contention that the writ petition under Article 226 of the Constitution should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out.
Of course, on behalf of the writ petitioner, attention of the Court was invited to the decision in the case of Whirlpool Corporation, AIR 1999 SC 22. In the said case, the Apex Court held that the authority issuing the show cause notice has no jurisdiction to issue the same and the Registrar of Trade Mark could not act as a Tribunal. In the said backdrop, it was held that the alternative remedy is not a bar.
It was then submitted on behalf of the writ petitioner that this point was required to be taken up at the very beginning. The same having not been taken up earlier and since the writ petitioner is enjoying an interim order, Mr. Ganguly contended that such an issue does not deserve to be entertained at this belated stage. To this, Mr. Basu Chowdhury submitted that the interim order was subsequently vacated.
Much was argued on behalf of both the sides, regarding the manner in which the enquiry proceeding was conducted. Having regard to the fact that this Court does not find any justification for entertaining the grievances of the petitioner, as ventilated in the application under Article 226 of the Constitution, I think that those aspects should better be left out for proper and effective adjudication before appropriate forum.
Considering all these facts and circumstances, I am inclined to hold that the present application whereby the writ petitioner has challenged the initiation of the disciplinary proceeding as well as the orders passed in connection with the same, does not deserve to be entertained. This should better be left for proper and effective adjudication by the Industrial Tribunal.
The writ application being W.P. No. 2136 of 2005 stands disposed of with the aforesaid observation. There is no order as to costs.
Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.)