Patna High Court
Md. Israil vs Chaudhary Sia Saran Sinha And Anr. on 11 April, 1961
Equivalent citations: AIR1961PAT411, [1962(4)FLR37], (1962)ILLJ519PAT, AIR 1961 PATNA 411, (1962) 1 LABLJ 519
Bench: V. Ramaswami, N.L. Untwalia
JUDGMENT Untwalia, J.
1. Md. Israil, the petitioner in this case, has been discharged--in effect, dismissed--from service by the Motipur Sugar Factory Private Ltd., respondent No. 2, by the order of the Factory Manager as communicated to the petitioner in letter No. FL/295 of the 28th February, 1957 (copy of which is annexure B to the petition). By an award dated the 15th May, 1959, respondent No. 1, Mr. Chaudhury Sia Saran Sinha, Presiding Officer, Labour Court, North Bihar, at Muzaffarpur, in a reference under Section 10 of the Industrial Disputes Act, 1947, has justified the dismissal of the petitioner.
He has, therefore, obtained the rule from this court against the respondents to show cause why the said award be not set aside by an appropriate writ or order. In response to the rule, cause has been shown on behalf of the factory by Mr. A. B. N. Sinha, its learned Advocate. Mr. Ranen Roy argued the case of the petitioner. In order to appreciate the points urged in support of the rule, it is necessary to state the following facts.
2. The petitioner was employed as a gross weighment clerk incharge by the 2nd respondent, was posted at the relevant time at the Muzaffarpur cane purchasing centre of the Factory and was working as such during the period the 17th February to 24th February, 1956. At that time it was found out that the petitioner, in criminal conspiracy with others, issued some fictitious cane purjis resulting in abnormally heavy shortage in the quantity of cane said to have been supplied. The Cane Manager forthwith suspended the petitioner by his letter dated 24th of February, 1956, (copy of which is annexure A to the petition). The letter reads:
"You are suspended forthwith pending an enquiry into a Prima facie charge of misconduct against you."
Thereafter the Cane Manager filed the complaint, on the 9th of April, 1956, against the petitioner and others in the court of the Sub-divisional Magistrate at Muzaffarpur who sent it for enquiry to the Government Cane Inspector. It appears that the inquiring officer gave an opportunity to the petitioner to take part in the enquiry but he refrained from doing so. An ex parte enquiry was held and the. Cane Inspector submitted his report dated the 24th of June, 1956 (Ext. Q) to the Sub-divisional Magistrate holding that there was a strong prima facie case against Md. Israil. Israil along with others was put upon his trial before a Judicial Magistrate, Muzaffarpur, who, by his judgment dated the 18th of February, 1957 (Ext. S) convicted him for falsification of accounts under three counts under Section 477A of the Indian Penal Code and sentenced him to rigorous imprisonment for six months under each count; sentences were to run concurrently.
I may note here that, though the petitioner was found to have issued many fictitious receipts but, to avoid a misjoinder of charges in the criminal trial, he was charged only in respect of three. Immediately after the conviction of the petitioner, the letter dated the 28th February, 1957 (annexure B to the petition) discharging him from service with effect from 1st of March, 1957, was issued by the Factory Manager on the ground of his conviction in the criminal case filed by the Management.
But the petitioner went up in appeal against his conviction and the learned Additional Sessions Judge of Muzaffarpore by his judgment and order dated 30th of July, 1957, giving benefit of doubt to the petitioner, set aside his conviction and sentence and acquitted him of the charge levelled against him. The said judgment was Ext. 6 in the Labour Court and a copy of it is annexure C to this petition also. Alter his acquittal, the petitioner wrote to the Management through the Secretary of the Motipur Sugar Factory Mazdoor Union, a letter dated the 20th of November, 1957, Ext. 1(f) for his reinstatement.
The Management, however, wrote back to the Union that, although Md. Israil had been acquitted by the appellate court on benefit of doubt, his conduct in its eyes was still doubtful and it had lost confidence in him and it was, therefore, not safe for the Management to keep him in employment any longer. This dispute was followed by a conciliation proceeding and on its failure the Governor of Bihar was pleased to refer the said dispute to the Labour court, Muzaffarpur, under Section 10 of the Industrial Disputes Act, by a notification dated the 2nd of December, 1958, (copy of which is annexure D to the petition). The dispute referred to was in the following terms:--
"Whether the dismissal of Shri Md. Israil, Weighment clerk incharge, Motipur Sugar Factory Private Ltd. was justified and, if not to what relief is he entitled to (sic) ?"
3. The petitioner (through his Labour Union) and the 2nd respondent filed their written statements in the Labour Court, got exhibited certain documents and examined in all 10 witnesses, out of whom 6 were examined on behalf of the Management and 4 on behalf of the Union. The evidence adduced on behalf of the Management also included the certified copies of depositions of a number of witnesses who had been examined on their behalf in the criminal court following the principle enunciated by the Labour Appellate Tribunal of India at Calcutta in a case of another workman of this very factory to the effect:
"We have given the matter our best consideration, and we think that on the facts of the case, though there may not be sufficient evidence for securing a conviction in a criminal case, there was every reason to believe that the applicant must have abetted or connived at it. The management seems to be perfectly justified in refusing to re-employ the applicant who was under a shadow of a reasonable suspicion."
has held:--
".....that there was every reason to think that Md. Israil was guilty of wilful falsification of accounts with a dishonest motive as pointed out above and was at least under a shadow of reasonable doubt for the same."
4. In the earlier portion of the award, it has also held with reference to the standing instructions given and contained in Exts. C and C (1) and admittedly received by the petitioner that he was guilty of disobeying those instructions of the superior officers which amounted to gross misconduct on his part and the action of the Management in dismissing him could be justified and held to be reasonable and proper on that ground alone. But the court has not rested its decision only on that ground: it has further discussed the other evidence and materials and has arrived at the finding quoted above.
It has also held that the action of the Management was not for the sake of victimization of the petitioner and it was justified in not re-employing him for the following season (the petitioner was admittedly a seasonal employee). Although in the written statement filed by the petitioner in the labour court a point had been taken that the order of dismissal was bad because of the non-holding of any enquiry by the Management before his dismissal as required by paragraph 52 of the Standing Orders for Workmen in Sugar Factories in Bihar, it was not pressed at the time of hearing of the case by his learned advocate in the Labour Court.
Nonetheless the court has incidentally gone into the matter and has held that no prejudice had been caused to the petitioner, on the facts and in the circumstances of the case, by reason of the absence of a formal charge sheet and enquiry by the Management. In coming to this conclusion, the Labour Court has made reference to the opportunity given to the petitioner by the inquiring officer (the Cane Inspector) which he did not avail of. and the full opportunity which he got in the trial of the criminal case in knowing the charges levelled against him and in meeting them.
5. Mr- Ranen Roy has raised three points in support of this application that-
(i) at no stage it was the case of the Management that the petitioner was guilty of wilful insubordination or disobedience amounting to misconduct within the meaning of paragraph 49 (a) of the Standing Orders; and the Labour Court! was, therefore, not justified rather -- went beyond the scope of the reference --in justifying the order of dismissal of the petitioner on the ground;
(ii) the Labour court is a 'court' within the meaning of Section 3 of the Evidence Act and is bound to take and rely upon evidence within ins four corners of the said Act, that being so, it has grievously erred in admitting and relying upon the certified copies of depositions of various wit-nesses examined in the criminal court, most of whom were not examined before it as they were not the legal evidence in, the case before it (Labour Court); and (iii) failure of the Management to draw up and serve a formal charge sheet on the petitioner and to hold a managerial enquiry before passing the order of dismissal makes it void and without jurisdiction. Learned counsel for the petitioner, however, did not dispute the propriety of the approach of the Labour court to the case in the light of the principle enunciated by the Labour Appellate Tribunal, quoted above.
6. Mr. A. B. N. Sinha, appearing for respondent No. 2, not only combated the points urged on behalf of the petitioner but also placed before us a copy of the written statement with its annexures filed on behalf of the workmen through the Labour Union in the Labour court and drew our attention to some of the letters annexed thereto on the basis of which he submitted that the petitioner was fully aware of the charges levelled against him and no prejudice has been caused to him by the alleged failure of the Management in framing a formal charge sheet.
He further submitted that no managerial enquiry was held in this case because of the enquiry held by the Cane Inspector and the holding of full-fledged criminal trial- In any event, counsel, contended, the merits of the impugned order of dismissal were at large before the labour court and it had to decide for itself whether the order was justified or not.
7. There is not much substance in the first point urged on behalf of the petitioner. No extra facts have been found or taken into consideration, by the Labour court in coming to the conclusion that the petitioner had violated the instructions of the superior officers and was thus guilty of misconduct within the meaning of paragraph 49(a) of the Standing Orders. In this regard, the very same facts and the materials which were before the Tribunal in connection with the main charge of falsification of accounts and issuance of fictitious purjis have been considered by the Labour Court for arriving at the said conclusion by drawing inferences from the facts proved.
I shall be referring to some of those materials and facts when I come to deal with the second point raised on behalf of the petitioner. But, having considered them, I am not prepared to hold that the award is bad on the first ground taken by Mr. Roy. Moreover, as I have stated above, the Labour court has not rested its award only on this finding. It has considered the main charge against the petitioner and has found justification for his dismissal in connection therewith.
8. Reliance was placed upon a single Judge's decision of the Calcutta High Court in Burrakar Coal Co. Ltd. v. Labour Appellate Tribunal of India, AIR 1958 Cal 226 in support of the proposition that the labour court in the proceeding on a reference under Section 10 of the Industrial Disputes Act is to be bound by, and to keep itself within, the four corners of the Evidence Act. It is not necessary to decide this contentious question in this case, as even assuming it to be so, I find that the finding of the Labour court on the main charge against the petitioner is based upon and can be supported by the other materials and evidence in the records of the case even without the impugned Exts. R series.
In paragraphs 10 to 12 of the award, the Labour court has made reference to various exhibits such as Exts. B, C, C(D, D, D(1), G to G(16), K to K(19), J(1) to J(16) and some more. It is no doubt true that at places the Labour court has taken help from the depositions, Exts. R series, a few of which were made use of by the petitioner also, but, on the whole, the finding is supported by the other exhibits without the aid of Exts. 'R' series, (His Lordship considered the award and proceeded:) In my judgment, therefore, the independent finding of the Labour Court to the effect that Md. Israil was guilty of wilful falsification of accounts with a dishonest motive or in any event was 'under a shadow of reasonable doubt for the same', is supported by the evidence in the records of this case other than Exts. R series and the said finding must be held to be a perfectly legal and valid finding in justification of the impugned order of dismissal.
9. To appreciate the third point raised by Mr, Ranen Roy, it is necessary to quote paragraph 52 of the Standing Orders:
"No order of dismissal or suspension shall be made unless the workman concerned is informed of the alleged misconduct and is given an opportunity to explain, and after which an enquiry has been held. If misconduct is alleged against a worker and if the Manager considers that an enquiry is necessary before awarding punishment in accordance with the Standing Orders, he may summarily suspend such operative for a period which shall not exceed 4 days without sufficient reasons. If on enquiry the workman is not found guilty he shall be deemed to be on duty during the full period of his suspension."
I shall now read paragraph 49(a) and (h) of the said Standing Orders:--
"The following acts or omissions shall be treated as misconduct:--
(a) Wilful insubordination or disobedience whether alone or in combination with others of any lawful and reasonable order of a superior.
** ** **
(h) Gross or habitual negligence or neglect of work.
** ** ** The Labour Court has found justification of the dismissal of the petitioner in the said two clauses of paragraph 49 of the Standing Orders. It is conceded on behalf of the management that no formal charge sheet was framed or handed over to the petitioner and that no managerial enquiry was held before passing the order of dismissal. The justification for the said omissions is sought from the fact of the holding of the enquiry by the Government Cane Inspector followed by the criminal trial. Mr. A. B. N. Sinha, as I have said above, further drew our attention to the two letters annexed to the written statement of the petitioner filed in the court below. The one is the letter dated 23-8-57 written by the Petitioner to the General Manager of the Motipur Sugar Factory Private Ltd., wherein he stated:--
"In continuation to my letter dated 12-3-57 addressed to the Factory Manager of the company. I beg to bring to your kind notice that the charges levelled against me for falsification of account has not been proved against me and I have been found innocent and the appeal against the conviction passed by the learned Trial Court has been allowed and the order of conviction has been set aside."
Mr. Sinha submitted -- and, in my opinion, rightly--that the said paragraph clearly shows that the petitioner was fully aware of the charge against him and, as a matter of fact, the order of dismissal which has been passed against him after conviction by the trial court was obviously in connection with the said charge. The other letter referred to is the letter of the Factory Manager dated the 20th of November, 1957, written to the Secretary of the Motipur Sugar Factory Mazdoor Union in reply to the latter's letter of the 17th November, 1957, wherein it was stated:--
"Shri Md. Israil, Ex. Weighment clerk in-charge was tried and convicted by the Criminal Court on the charge of falsification of records.
On going up in appeal, the appellate court acquitted him, giving him the benefit of doubt. The fact that the Court did not find sufficient material On the record to uphold his conviction does not go to prove him innocent His conduct still remains doubtful. We have lost confidence, in him. and do not consider it safe to keep him in our employment any longer."
10. Apart from the fact that the point was given up by the petitioner in the court below and no prejudice was shown or found, the point has no substance either. The law in this regard has been clearly laid down by the Supreme Court in the case of Punjab National Bank Ltd. v- All India Punjab National Bank Employees' Federation, AIR 1960 SC 160. Gajendragadkar, J., who delivered the judgment on his behalf and on behalf of Sinha, J. as he then was, has held at page 173 :--
"There is one more point which still remains to be considered and that is the effect of the Bank's default in not holding an enquiry in the present case. If the Bank has not held any enquiry it cannot obviously contend before the tribunal that it has bona fide exercised its managerial functions and authority in passing the orders of dismissal and that the tribunal should be slow to interfere with the said orders. It is true as we have already pointed out that if the employer holds a proper enquiry, makes a finding in respect of the alleged misconduct of the employee and then passes an order of dismissal the tribunal would be slow to interfere with such an order and would exercise its jurisdiction within the limits prescribed by this Court in the case of Indian Iron and Steel Co. Ltd., v. Bamapada Mukherjee, 1958 SCR 667: AIR 1958 SC 130.
But it follows that if no enquiry has in face been held by the employer, the issue about the merits of the impugned order of dismissal is at large before the tribunal and, on the evidence adduced before it, the tribunal has to decide for itself whether the misconduct alleged is proved, and if yes, what would be proper order to make. In such a case the point about the exercise of managerial functions does not arise at all. This answers the argument which Mr. Sanyal has raised before us in his appeal."
Subba Rao, J., who agreed with the conclusion of the majority decision but added a short note of his own, did not disagree with the exposition of law quoted above. Mr. Ranen Roy placed great reliance upon another decision of the Supreme Court in Bata Shoe Company (Private) Ltd. v. D. N. Ganguly, 1961-1 Lab LJ 303 : (AIR 1961 SC 1158). This decision is of a Bench of the Supreme Court consisting of Gajendragadkar and Wanchoo, JJ. It is about a year after the decision of the Supreme Court in the case of Punjab National Bank Ltd., AIR 1960 SC 160. It is necessary to state a few relevant facts of the case of Bata Shoe Company. Sixty of its workmen had been dismissed, according to the case of the Company, after taking steps to serve charge sheets on them who were said to have joined an illegal strike, and after holding a managerial enquiry. The Labour Tribunal, to which the dispute was referred, held that the strike in question was illegal- Thereafter it proceeded to consider the case of the 60 workmen who had been dismissed for their alleged participation in the illegal strike. The tribunal then "divided the sixty workmen into three batches of 47, 11 and 2. In the case of 47 workmen, it held that they must be assumed to have been served with charge sheets as they refused to accept them and that proper inquiry was held into the charges, though in their absence. In the case of 11 workmen, it was of opinion that charge sheets had not been served on them and therefore any inquiry held in their absence was of no avail. In the case of two workmen, it held that! no attempt was made to serve any charge sheet on them. Further it set aside the order of dismissal with respect to 13 of the workmen on the ground that they were either not served with any charge sheet or no charge sheet was issued to them; as for the remaining 47, though it found that chargesheets had been issued to them and they had refused to accept them and proper inquiry had been held in their case, it set aside the order of dismissal on the ground that they had not been shown to have taken part in violence and there were extenuating circumstances in their case inasmuch as they were misled to join the strike in order to oust the old office-bearers of the union so that others might be elected in their place".
Although from the subsequent lines of the decision of the Supreme Court occurring after the portion put above in quotation it would appear that the 13 workmen also were said to have taken part in the illegal strike, it is not clear as to whether the tribunal had gone into the question and examined for itself in the view it took on the question of charge-sheet and enquiry whether those workmen had actually taken part in the illegal strike; if so, how and to what extent.
There is no indication in the judgment of the Supreme Court that on the facts of that case the tribunal was called upon or had actually gone into the merits of the Order of dismissal of the said 13 workmen. In that situation, in regard to the case of the 47 workmen, it was held:
"In these circumstances when the managerial inquiry was held to be proper and the misconduct] committed is such as to deserve dismissal under the standing orders, there was no reason for the tribunal to interfere with the order of dismissal passed by the appellant in the case of these 47 workmen. It may be that participation in an illegal strike may not necessarily and in every case be punished with dismissal; but where an inquiry has been properly held and the employer has imposed the punishment of dismissal on the employee who has been guilty of the misconduct of joining the illegal strike, the tribunal should not interfere unless it finds unfair labour practice or victimization against the employee".
In regard to the 2 workmen, the decision of the Supreme Court is:
"There is no proof in this case that any opportunity was given to these two workmen of offering their explanation before the decision of dismissal was arrived at in their case. In these circumstances, even though no charge-sheet might have been necessary in the case of these two workmen, their dismissal was against the provision of the standing orders, for no explanation was taken from, them before arriving at the decision to dismiss them. The order of the tribunal with respect to these two workmen must be upheld".
Then the case of the remaining 11 workmen was considered and the following decision was arrived at:
" ..... we agree with the tribunal that these eleven workmen had no notice of the charges against them and the date by which they had to submit their explanations as well as the date of inquiry. In these circumstances the order of the tribunal with respect to these eleven workmen must also be upheld".
On the strength of the decision of the Supreme Court in the case aforesaid in regard to the 13 workmen, Mr. Roy submitted that failure of the Management to frame against, and serve upon, the petitioner a formal charge-sheet and to hold a managerial enquiry as required by paragraph 52 of the Standing Orders was a defect of the kind very much similar to the one in Bata Shoe Company's case, 1961-1 Lab LJ 303 : (AIR 1961 SC 1158) relating to the 13 workmen and the same conclusion must follow.
I am unable to accept this contention. Firstly, it is to be noticed that Gajendragadkar, J., who delivered the judgment of a Bench of the Supreme Court consisting of 3 Judges in the case of Punjab National Bank Ltd., AIR 1960 SC 160, was also a party to the Division Bench decision of the Supreme Court in the case of Bata Shoe Company, (1961) 1 Lab LJ 303 : (AIR 1961 SC 1158). The latter Bench must not have intended to, nor did it, lay down a law different from the one enunciated by the former Bench. Secondly, the points of distinction are these:
(i) The scope of the enquiry and the power of an Industrial Tribunal or a Labour Court in a reference under Section 10 of the Industrial Disputes Act in a case which comes before it after the management has taken proper steps for service of a charge-sheet on the workman concerned and held a proper managerial enquiry are different from those in a case which comes before it wherein an order of dismissal has been passed without such steps having been taken by the management for service of a charge-sheet or without holding a managerial enquiry. In the former case, 'the tribunal should not interfere unless it finds unfair labour practice or victimization against the employee' (vide (1961) 1 Lab LJ 303 at p. 311, col. 1 : (AIR 1961 SC 1158 at p. 1164 col. 1)). In the latter case, however, "the issue about the merits of the impugned order of dismissal is at large before the tribunal and, on the evidence adduced before it, the tribunal has to decide for itself whether the misconduct alleged is proved, and if yes, what would be proper order to make" and in such a case the point about the exercise of managerial functions does not arise at all (vide AIR I960 SC 160 at P. 173 col. 2).
(ii) In fact, in the case of Bata Shoe Company, 1961-1 Lab LJ 303 : (AIR 1961 SC 1158), the issue about the merits of the impugned order of dismissal does not seem to have been made at large before the tribunal as the claim of the company was that it had served charge-sheet and notices of enquiry, though not actually but in the eye of law, on all the 60 workmen and that it had held a proper managerial enquiry. So the scope of the enquiry by the Industrial Tribunal and its power with reference to the case of all the 60 workmen were kept in a narrower compass. In that situation, the Supreme Court upheld the award of the tribunal apropos the case of the 13 workmen.
11. In the result, I find no merit in any of the contention raised in support of this application which is accordingly dismissed, but, on the facts and in the circumstances of the case, I would make no Order as to costs.
Ramaswami, C.J.
12. I agree.