Calcutta High Court (Appellete Side)
Eastern Coalfields Ltd vs Swadhin Kumar Banerjee & Ors on 29 July, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
Form No.J(2) IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No.14812 (W) of 2003
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Eastern Coalfields Ltd.
Versus
Swadhin Kumar Banerjee & ors.
For the petitioner: Mr. R.N. Majumdar,
Mr. Susanta Pal,
Mr. P. Basu,
Mr. Nikhil Roy.
For the respondents: Mr. Tarakeshwar Pal,
Mr. Partha Ghosh, Mr. Shamik Chatterjee.
Heard On: 21.06.2013, 28.06.2013, 05.07.2013 & 12.07.2013.
Judgement On: July 29, 2013.
Prasenjit Mandal, J.: This application under Article 226 of the Constitution is for issuance of a writ of certiorari and/or mandamus and/or prohibition and/or writ or writs in the nature thereof and/or direction under Article 226 of the Constitution of India.
The petitioner has contended that the respondent no.1 was a permanent employee of the petitioner at its Shankarpur Colliery under Bankola area and was posted as 'Storekeeper'. While he was on duty at the said colliery on September 3, 1994, some iron materials of the said colliery had been dispatched through some outside trucks in his connivance without observing the formalities and without the knowledge of any of the concerned Officers of the petitioner company posted in the said colliery. Accordingly, a departmental enquiry was lodged and the petitioner was directed to defend, but, he did not cooperate with the Enquiry Officer and he prayed for adjournments on two occasions and as a result, the Enquiry Officer submitted his report ex parte on the basis of which the petitioner issued the order of dismissal against the respondent no.1.
Thereafter, the matter went to the Tribunal and then the Tribunal upon understanding the above position allowed the parties to adduce evidence and on the basis of the evidence, the learned Tribunal found that the order of dismissal of the respondent no.1 was illegal and as such, the workman would be entitled to full back wages and reinstatement. Being aggrieved, this application has been preferred.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that so far as the earlier enquiry as to misconduct of the petitioner is concerned, the departmental proceeding proceeded ex parte in view of the fact that even when notices were issued to the respondent no.1, he did not cooperate and he filed an application expressing his grievance to attend on the medical ground.
Anyway, the Enquiry Officer did not believe in such statement and disposed of the departmental proceeding ex parte on the basis of which the petitioner dismissed him from service. The matter came before the Appellate Tribunal, and then the learned Tribunal gave an opportunity to the parties to adduce evidence in respect of the respective contentions. Consequently, the petitioner examined two witnesses, namely, M.W.1 & M.W.2 and the respondent no.1 has examined himself as witness for the W.W.1.
Upon analysis of the evidence, the learned Tribunal has come to the conclusion that the management has failed to establish the charge against the workman and that there is no basis to publish the workman by way of dismissal from service. Accordingly, appropriate orders for reinstatement was passed.
The respondent no.1 was given charge sheet alleging theft, fraud or dishonesty in connection with the employer's business property. There is no dispute that the respondent no.1 was the Storekeeper and he was on duty on September 3, 1994 when the police personnel at Darjeeling More (crossing) intercepted a truck and on inspection, it was found that the said truck contained iron scrap materials. Thereafter, the police started a case under Sections 379/120B/411/420 of the I.P.C. with Kanksha Police Station bearing Case No.1130 of 1994. That F.I.R. did not disclose the name of the respondent no.1. The enquiry reveals that the concerned challan showing transit of the materials in the said truck was without seal from Shankarpur Colliery along weigh bridge slips in triplicate bearing the signature of the Storekeeper, Shri Swadhin Banerjee (respondent no.1). The said materials were dispatched to Gupta Engineering Ningha without proper authorisation. Accordingly, the Enquiry Officer held that it could not be done without any connivance of the respondent no.1.
Anyway, the learned Tribunal did not rely on such ex parte evidence and the parties were allowed to adduce further evidence and from the evidence of the M.W.1, Shri K.N. Chowdhury before the Tribunal, I find that he is a Security Officer under Bankhola area of the petitioner. He has deposed to the effect that although the respondent no.1 was posted as Storekeeper at Shankarpur Colliery in the year 1996, he (M.W.1) was posted at Bankhola area on June 5, 1994 and it was reported to the management by Kanksha Police Station that the truck loaded with iron materials was detained on suspension and one challan without seal issued from Shankarpur Colliery along with weigh bridge slips in triplicate bearing signature of the respondent no.1 were seized. The said materials were dispatched to Gupta Engineering Ningha from Shankarpur Colliery without proper authorisation in connivance with the workman (respondent no.1). Thus, from his statement, I find that the learned Tribunal has rightly held that his evidence is nothing but hearsay.
So far as the M.W.2, S.K. Sahoo is concerned, I find from materials on record that he is a Senior Personnel Officer posted at Shankarpur Colliery. He has deposed to the effect that on September 5, 1994, the Kanksha Police reported to the management that one truck loaded with iron materials was seized on suspicion and a challan without seal was issued from Shankarpur Colliery along with weigh bridge slips in triplicate bearing the signature of the respondent no.1 and that the materials were dispatched to Gupta Engineering Ningha without proper authorisation in connivance with the respondent no.1. Thus, from the evidence of the M.W.2, I find that the M.W.2 has no direct knowledge as to the allegation raised in the charge sheet and his evidence is nothing but hearsay.
The workman respondent no.1 has deposed supporting his defence stand that he is totally innocent and he has been falsely implicated.
Thus, on scrutiny of the evidence on record, I find that the evidence tendered on behalf of the management is nothing but hearsay.
Mr. R.N. Majumdar, learned Advocate appearing for the petitioner, has contended that the observation of the learned Tribunal that the evidence of the M.W.1 & M.W.2 is hearsay cannot be accepted in view of the decisions of State of Haryana & anr. Rattan Singh reported in AIR 1977 SC 1512 particularly paragraph no.4, J.D. Jain v. The Management of State Bank of India & anr. reported in AIR 1982 SC 673 particularly paragraph nos.7, 9, 10, 12 & 14 and The Government of Andhra Pradesh & ors. v. Ch. Ghandhi reported in AIR 2013 SC 2113 and thus, he has contended that in order to deal with the departmental proceedings, the strict rule of evidence need not be followed. Only the broad principles of the Evidence Act would be applicable and in dealing with the matter of departmental proceeding, the Court is to consider the principle of preponderance of probability to come to a conclusion. The sufficiency of evidence in proof of the findings by domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the face of the record.
By referring the decision of J.D. Jain (supra), he has referred to the meaning of the hearsay evidence which, inter alia, includes that 'hearsay' is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else. Thus, he has submitted that in consideration of the principles of preponderance of the probability in view of the fact that the weigh bridge slips in triplicate bear the signature of Swadhin Banerjee (respondent no.1), the involvement of the respondent no.1 in the matter has been proved and as such, the impugned order should be set aside.
He has also contended that the order of the learned Tribunal as to reinstatement cannot be supported at all in view of the fact that while affirming the affidavit- in-opposition filed by the respondent no.1, he has clearly indicated his age as 62 years in April 2010 and as such, since the respondent no.1 has already reached the age of superannuation long time back, the question of reinstatement does not arise. So, such findings of the learned Tribunal cannot be accepted.
He has also contended that there is no clear evidence that the respondent no.1 was not engaged for gainful purpose elsewhere during the period of suspension and as such, the order of payment of arrears of rent is not proper and this should be set aside. Thus, he has contended that the impugned order should be set aside as a whole.
Mr. Majumdar has also referred to the decision of State of Himachal Pradesh & ors. v. M/s. Associated Hotels of India Ltd. reported in AIR 1972 SC 1131 particularly the paragraph no.39 and thus, he has submitted that if there is no mala fide on the part of the management, relying on the principle of preponderance of probability, appropriate orders should be passed.
On the other hand, Mr. Tarakeshwar Pal, learned Advocate appearing for the opposite parties, has vehemently opposed the submission made by the learned Advocate for the petitioner and he has relied on the decisions of Jasbir Singh v. Punjab & Sind Bank & ors. reported in 2007(1) CLJ(SC) 151, Bachan Singh v. Union of India & ors. reported in 2008(5) Supreme 101 particularly paragraph no.14, Smt. Nipa Dhar (Nee Ghosh) v. National Aviation Company of India Ltd. & ors. reported in (2011)2 WBLR(Cal) 793 and Shalimar Paints Ltd. v. First Industrial Tribunal reported in 2012(5) CHN(Cal) 160 and thus, he has submitted that since there is no direct evidence against the respondent no.1, the learned Tribunal has rightly concluded.
He has also argued that since the employee has stated that he was not engaged elsewhere, the burden of proof that he was engaged elsewhere lies upon the employer and not on the employee at all. Thus, he has supported the findings of the learned Tribunal.
Having heard the learned Counsel for the parties and on going through the materials on record and the above decisions, I find that the evidence tendered by M.W.1 & M.W.2 is not at all in the manner what we call direct evidence on the articles of charge, but, totally hearsay. Neither of them was present at the time of commission of the offence at the spot nor were they present at the time of interception by the police authority. The enquiry report reveals that after the receiving the information of seizure of the loaded truck, the management asked the workman to hand over the charge of Shankarpur Colliery store and then the workman followed the direction and handed over the charge of the store with details of stock and examination of the said stock was done but nothing was found wrong and that there was no shortage of any materials. The verification had been done in presence of the M.W. No.1. Accordingly, the Manager of the Shankarpur Colliery issued a certificate to the effect that there was no shortage of any materials.
Not only that, when the release of the seized materials came before this Hon'ble Court, one Dilip Kumar Gupta of Ningha filed an application for return of those materials and ultimately, the seized articles were returned to Dilip Kumar Gupta without any objection or protest on behalf of the petitioner. The petitioner did not pray for return of those articles claiming the same at its own.
This being the position, in consideration of the evidence on behalf of the management and the circumstantial evidence and the above fact, I am of the view that the findings of the learned Tribunal cannot be said to be without any basis.
Therefore, so far as the order of releasing of the respondent no.1 from the charges by the Tribunal, I am of the opinion that there is no scope of interference with the same.
So far as reinstatement is concerned, under the above circumstances, since the respondent no.1 had already crossed the age of superannuation, no question of reinstatement arises.
But, since the charge has not been established against the respondent no.1, he is entitled to get back wages in view of the fact that the incumbent has stated that he was not engaged anywhere and the employer also could not show any evidence that the respondent no.1 was engaged elsewhere for gains. So, the negative submission of the incumbent should be accepted and accordingly, I am of the view that the respondent no.1 is entitled to get full back wages till the date of superannuation. The question for decision is held accordingly. The impugned order cannot be sustained as a whole, but, the same needs to be modified accordingly.
The application is disposed of to the extent indicated above.
All the retiral benefits be released in favour of the respondent no.1 forthwith.
However, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.) Later:-
After delivery of the order, the learned Advocate for the petitioner prays for stay of the above order for a period of fortnight.
Since the matter has been disposed of upon analysis of materials on record. I am of the view that the prayer for stay cannot be entertained.
The prayer for stay of the above order is, therefore, considered and rejected.
(Prasenjit Mandal, J.)