Jharkhand High Court
Managemant, Bokaro Steel Plant vs Their Workman R.B.Bhuiyan on 7 September, 2016
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (L) No. 5556 of 2005
The Management of Bokaro Steel Plant of
Steel Authority of India Limited, District Bokaro..... Petitioner
Versus
1. (a) Amarwa Devi
(b) Rakesh Bhuiyan
(c) Chandan Bhuiyan
(d) Goma Bhuiyan
(e) Gola Bhuiyan . ...... Respondents.
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
For the Petitioner : M/s. Indrajit Sinha & Vijay Kant Dubey, Advs.
For the Respondents : M/s. Manish Kumar & Rajesh Kumar Singh,Advs.
21/7.9.2016 Heard learned counsel for the parties.
By the impugned Award dated 9th October, 2004 passed in Reference Case No. 8 of 1999 by Presiding Officer, Labour Court, Bokaro Steel City, Bokaro, petitionerManagement has been directed to reinstate the workman in service with 50% back wages from the date of dismissal within three months of the date of commencement of the Award.
The workman has been substituted by his legal heirs during the pendency of the writ application on his death.
By Notification no. 7/ShramD3607/97 L&E4312 dated 6th October, 1998 issued under Section 10(1) (c) of Industrial Disputes Act, 1947, the following reference was made to learned Labour Court, Bokaro Steel City, Bokaro.
"Whether the termination of services of Sri R.B.Bhuiaya, workman Staff No. 190041 BMP Coke Oven and B.P.P. by the management of M/s. Bokaro Steel Plant, Bokaro Steel City of the charge of unauthorized absence is proper? If not, what relief the workman is entitled to?".
Brief facts relevant for adjudicating the issues raised herein are being noticed hereunder:
The concerned workman was appointed as Gas Helper in 1972 and got promotion from time to time in higher grade upto L5 Grade on 7th January, 1982. He was however in the habit of absenting at frequent 2. intervals, for which the chargesheet was issued (Annexure2 to the writ petition) which alleges continuous absence of the workman from duty since 11th October, 1993 without leave or permission. The Management and the workman both adduced one witness on their part.
The documents exhibited by the Management are as follows: Ext. M1 is the offer of appointment, Ext. M2 is the joining report, Ext.M3 is the chargesheet dated 10.7.93, Ext. M4 is the notesheet, Ext. M5 is the dismissal order, Ext. M6 is the chargesheet dated 20.10.93/4.11.93, Ext. M7 is the chargesheet dated 30.3.91, Ext. M8 is the office order dated 29.6.91, Ext. M9 is the chargesheet dated 16.3.90, Ext. M10 is the statement of allegation, Ext. M11 letter of the management dated 13.7.93, Ext. M12 is the notesheet, Ext. M13 is the letter of the management, dated 15.11.90, Ext. M14 is the charge sheet dated 1214.7.89, Ext. M15 is the statement of allegation, Ext. M16 is the office order dated 30.1.1990, Ext. M17 is the statement of the workman, Ext. M18 is the letter of the management, Ext. M19 and M20 are the letters of the management, Ext. M21 is the chargesheet dated 6./7.9.88, Ext. M22 is the statement of allegation, Ext. M23 is the letter of the management dated 14.10.88, Ext. M24 is the chargesheet dated 11.4.88, Ext. M25 is the statement of allegation, Ext. M26 to M28 are the letters of the management, Ext. M29 is the application for gratuity, Ext. M30 is the xerox copy of the delegation of power and Exts. M31 to M31/92 are the xerox copies of the pay slips of the concerned workman.
The documents exhibited by the workman are as follows: Ext. W1 is the xerox copy of letter of the workman dated 28.9.95 addressed to the Dy. Labour Commissioner, Bokaro Steel City and Ext. M2 is the enquiry report dated 15.2.94.
It is undisputed that the workman did not participate in the inquiry which proceeded ex parte against him. Learned Tribunal also came to a finding that the absence of the workman was unauthorized as there was no leave or permission granted to him. The other exhibits relating to his unauthorized absence in the year 1987 were also on record by the management. The domestic inquiry held the workman guilty of habitual unauthorized absence.
However, it is also evident from the records that no copy of inquiry report or any second show cause notice was served upon the workman 3. before imposing the punishment of dismissal from service. The learned Tribunal also came to a finding that the management was in error in not serving copy of the inquiry report along with second show cause notice before imposing the punishment of dismissal.
Considering the ratio rendered by Apex Court in the case of Managing Director ECIL, Hydrabad Vrs. B. Karunakar reported in AIR 1994(SC) 1074, it has come to a finding that there was gross violation of principles of natural justice in the conduct of departmental proceeding by the petitionermanagement. However, considering the fact that the workman was in the habit of unauthorized absence at regular intervals and he remained absent from duty for more or less a fortnight in every month, for which he was warned, censured and scaled down to the minimum grade, he directed the workman to be reinstated in service with only 50% of his back wages.
On the basis of the materials on record therefore though the Tribunal was satisfied about the charge of unauthorized absence of the workman for the period in question starting from 11th October, 1993 and that he was in the habit of frequently absentee from duty without sanction of leave earlier also, but it came to the conclusion that dismissal was not proper in view of the failure to comply with the principles of natural justice as no second show cause notice or copy of the inquiry report was served upon him.
Learned counsel for the petitioner while assailing the impugned Award, submits that if the learned Labour Court has proceeded to come to a conclusion about the domestic inquiry being not fair then proper opportunity to the Management should have been accorded to justify their action on merits by adducing sufficient evidence in their support. Thereafter the learned Labour Court could have been remanded the matter on the question of quantum of punishment, if satisfied on merits with the stand of the management that the misconduct of the workman was proved. This course however has been byepassed by both holding 4. the domestic inquiry as unfair in the Award itself and proceeding to decide the reference on merits as well as on the consequential relief of reinstatement.
Learned counsel for the workman, on the other hand, submits by referring to the contents of the order dated 11th August, 2003 (Annexure7) passed in the same reference by the Labour Court that it clearly records that vide order dated 18th December, 2002, the learned Labour Court had come to a conclusion on the point of propriety of the domestic inquiry that it was conducted in an unfair and improper manner. It is submitted that the management had been granted sufficient adjournments to adduce evidence on its behalf. Only thereafter on consideration of the evidence adduced by the Management's witness as well as the several exhibits and that of the workman also the impugned award has been delivered. It is the case of the respondents workman that the course adopted by learned Labour Court is fully in accord with the procedure to be observed in industrial adjudication on a domestic enquiry. Once the Labour Court has rendered a finding about the impropriety of the domestic inquiry, it is obliged to enter into the arena on merits of the dispute and come to an independent finding as to the correctness and legality of the action taken by the management and consequential relief, which may follow.
I have considered the submissions of the parties at some length and gone through the relevant materials on record. The material facts noticed hereinabove need not be repeated. What has been urged by the petitioner management however does not bear resemblance from the orders on record including the impugned Award itself. The learned Labour Court had clearly come to a finding on an earlier date in the same reference about the impropriety and unfairness of the domestic inquiry conducted by the management. It thereafter allowed the management sufficient opportunities to adduce evidence in support of its action.
Perusal of the impugned Award also shows that not only sufficient 5. sufficient opportunity was granted to the management as well as the workman but they had adduced all such evidences in their support to contest the reference in question. The learned Labour Court has also come to a finding about the unauthorized absence of the workman time to time without leave or permission but has come to the conclusion that the inquiry suffered from violation of principles of natural justice for failure to serve the copy of inquiry report and second show cause notice upon the delinquent workman. This was in clear teeth of principles laid down by Hon'ble Apex Court in the case of Managing Director ECIL, Hydrabad Vrs. B. Karunakar(Supra). PetitionerManagement is an instrumentality of the state and as per the ratio rendered by Hon'ble Apex Court in the said judgment as also in terms of the Standing Order applicable in the Organization was obliged to serve copy of inquiry report along with the second show cause notice before passing the final order on the quantum of punishment against the workman. Definite prejudice have been caused to the workman in the absence of service of inquiry report and second show cause notice upon him, as the action of the management pursuant to the domestic inquiry has entailed his dismissal from service. The contention of the management that no prejudice would have caused to the workman in the absence of supply of copy of the inquiry report and second show cause notice, therefore, does not merit acceptance.
Therefore, on totality facts and circumstances and the reasons discussed hereinabove, this Court does not find any infirmity in the impugned Award warranting interference under Articles 226 and 227 of the Constitution of India. It cannot be said that the findings arrived at by learned Labour Court are based on no evidence. The Award cannot be said to suffer from perversity either. It can either not be said that learned Labour Court has posed a wrong question and has answered it accordingly. It is profitable to refer to the illuminating observations of Hon'ble Supreme Court on the scope of interference in the order/award 6. or judgment of an inferior Tribunal in exercise of writ of certiorari. It is appropriate to quote the relevant paragraphs of the celebrated judgment of the Hon'ble Supreme Court in the case of Syed Yakoob Vrs. K.S Radhakrishan & Others reported in AIR 1964 SC Page 477. Paragraphs 7 and 8 are quoted hereunder:
"Para 7: The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals:
these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued wherein exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.
Para-8:- It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can 7. be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened".
The workman however has died in 2006 during the pendency of the writ application as informed by his counsel and has been substituted by his legal heirs. Therefore, it would be futile to remand the matter at this stage on that issue. He was appointed in the year 1972 as per the case of the management also. The petitionermanagement would now therefore implement the Award in the changed circumstances by granting death cum retiral benefits to the legal heirs of the deceased workman treating him to be in service from the date of his dismissal.
Learned Labour Court has awarded only 50% of the back wages from the date of dismissal till the date of reinstatement. The proposition of law on the question of grant of back wages as culled out from precedents on the point by Hon'ble Supreme Court in the case of Deepali 8. Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others, is apposite to be quoted hereunder:
38. The propositions which can be culled out from the aforementioned judgments are:
38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to 9. get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees. 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.
In the facts of the instant case, there are no pleadings to the effect that the workman was not gainfully employed or was employed on lesser wages during the period of his dismissal. The Learned Labour Court has also found that the allegations of misconduct were established on the appraisal of the material evidence produced during adjudication. However, the order of reinstatement was awarded as there was gross violation of principles of natural justice on failure to serve copy of inuiry report and second show cause notice upon the workman before imposing the punishment of dismissal.
In such circumstances, the award of 50% back wages from the date of dismissal to that of reinstatement was fully justified. The workman having died after the award and before his reinstatement, for the 10. remaining period of his service, which he may have served before his death or till the period he reached the age of superannuation, interest of justice would be served if 50% back wages be awarded to his legal heirs for this period. The relief granted by the impugned Award is accordingly moulded in the aforesaid manner.
Accordingly, the writ petition is disposed of with the aforesaid observations and directions.
(Aparesh Kumar Singh,J) jk