Madhya Pradesh High Court
Sub Area Manager vs General Secretary, M.P.C.W.F. (Case Of ... on 4 April, 2006
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
ORDER A.K. Shrivastava, J.
1. The above said two writ petitions have been filed against the order dated 11.11.1991 and awards dated 4.12.1998 and 3.12.1998 passed by the Central Govt. Industrial Tribunal-cum-Labour Court, Jabalpur (in short CGIT). In W.P. No. 5089/99 the impugned order is dated 11.11.1991 and the final award which is also impugned is dated 3.12.1998. On going through the record of the CGIT in Reference Case No. 139/87 end Reference Case No. 133/87 and the order-sheet dated 13.3.1995 it is revealed that both the Reference Cases were consolidated and it was directed that evidence will be recorded in Reference Case No. 133/37 and the evidence so recorded would also be read in Reference Case No. 139/87.
2. The charges against workman Janeshwar Tiwari, (W.P. No. 5090/99) framed in the departmental enquiry are as under:
20(1)(e) DRUNKNESS, FITHIING, RIOTOUS, DISORDERLY OR INDECENT BEHAVIOUR.
20(1)(e) THREATENING OR ABUSING ANY OF HIS SUPERIOR STAFF and the same charges were framed against workman Rameshwar Tiwari (W.P. No. 5089/99). The imputation in respect to charges is different against the workmen. The imputation of charge against delinquent Janeshwar Tiwari is that on 2.7.80 at about. 12.30 in the mid night he entered unauthorizedly in the house of Shri B. Choudhary, Colliery Manager, Mew Jhimar Colliery and abused with filthy language to Shri Jaswant Singh, Executive Engineer (Civil), Ramnagar Group, who was standing with others. According to imputation of charge workman Janeshwar Tiwari rushed towards said Jaswant Singh and assaulted and threw his turban from his head. After a great persuasion and intervention by others, the workman led to his house back.
3. The imputation of charge against delinquent Rameshwar Tiwari is that at about 2.00 A.M. of 2.7.80 (mid night) when Shri BN Sinha, Under Manager, Shri V.K. Khare, Assistant Colliery Manager and others were returning by bus he blocked the road in front of quarter of Janeshwar Tiwari. As road was blocked bus had to stop. When V.K. Khare, Assistant Colliery Manager, wanted to inquire about the reason of stopping the bus in such a way, he threatened and also abused Shri BN Sinha, Under Manager, who was also traveling in the same bus. Shri V.K. Khare wanted to convince delinquent Rameshwar Tiwari and requested to release the block road which he did not listen and dragged Shri Sinha from the bus and assaulted him causing bodily injury. After a great persuasion and intervention by the occupants of the bus delinquent Rameshwar Tiwari stopped assaulting to Shri B.N. Sinha.
4. Both the delinquents were subjected to the departmental proceedings in which charges were found to be proved, as a result of which they were dismissed from the services vide order dated 22.11.80 (Rameshwar Tiwari) and order dated 30.9.80 (Janeshwar Tiwari).
5. The action of the management dismissing the services of the delinquent workmen was assailed by the Union and ultimately the reference was referred to the CGIT. The CGIT by common order dated 11.11.1991 held the departmental enquiry to be-vitiated on the ground that the management did not supply the documents and list of witnesses to the workmen. Thereafter, the CGIT directed the parties to lead the evidence to prove the misconduct.
6. I would not like to hesitate at the cost of repetition that the CGIT vide its order dated 13.3.1995 consolidated both the reference cases and it was directed to record common evidence, On behalf of the management B.N. Mishra, B. Choudhary, K.K. Pathak, T. Subbaratnam, Jaswant Singh, P.K. Chatterjee, R.C. Yadav and P.K. Mukherjee were examined. The workmen Rameshwar Tiwari and Janeshwar Tiwari were also examined. Apart from examining themselves, the workmen also examined one Purshottam on their behalf.
7. The CGIT passed the award on 4.12.90 in Reference Case No. 139/87 and the award in Reference Case No. 133/87 was passed on 3.12.98. The CGIT found that the misconduct is not proved and directed the management to reinstate workmen Janeshwar Tiwari and Rameshwar Tiwari with full back wages. Hence by these two writ petitions the management has assailed the awards of the CGIT.
8. It has been contended by Shri P.S. Nair, learned senior counsel appearing for the petitioner that the replies were submitted by the delinquent workmen against the charge-sheet and in their reply they did not ask to supply copy of any documents nor made any demand to provide list of witnesses. According to the learned senior counsel it has not been shown by the delinquent workmen that what prejudice has been, caused to them on account of non-supply of the documents and the list of witnesses. In support of his contention learned senior counsel has placed reliance on certain case laws. On merit it has been put-forth by the learned senior counsel that misconduct of riotous, disorderly and indecent behaviour has been duly proved and, therefore, the action of the management dismissing the services of the workmen cannot be said to be arbitrary or illegal or even in contravention of any law. In support of his contention Shri Nair, learned senior counsel has placed reliance on two decisions of the Supreme Court. They are Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd., Haldia and Ors. and T.N.C.S. Corporation Ltd and Ors. v. K. Meerabai (2006) 2 SCC 255.
9. Per contra, Shri Rohit Arya, learned senior counsel assisted by Shri. Bhagwan Singh argued in support of the impugned awards passed by the CGIT and has contended that the workmen were also prosecuted in a criminal case by the Police and they were tried and convicted by the trial Court but in appeal they were acquitted by the Sessions Judge, Shahdol vide judgment dated 1st October, 1990 passed in Criminal Appeal No. 72/90. The photocopy of the certified copy of the judgment of the Sessions Judge, Shahdol has been placed on record in the record of the CGIT. By placing reliance on the decisions of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. P.G.I. of Medical Education & Research, Chhandigarh v. Raj Kumar (2001) 2 SCC 54 Raghuvar Dutt Palaria v. General Technical Manager, H.M.T. Ltd., Nainital and Ors. 2006-I-LLJ (Uttaranchal) 203 it has been contended by Shri Arya, learned senior counsel that CGIT rightly quashed the departmental proceedings and since cogent reasons are assigned by the CGIT for directing to reinstate the workmen, therefore while exercising the jurisdiction under Articles 226 and 227 of the Constitution of India, this Court should not interfere with the findings arrived at by the CGIT.
10. Considered the rival contentions of learned Counsel for the parties and perused the record.
11. After having heard learned Counsel for the parties, I am of the view that W.P. No. 5090/99 deserves to be allowed and W.P. No. 5089/99 deserves to be allowed in part.
12. It is no more in dispute that the CGIT vide its order elated 13.3.95 directed to consolidate both the reference cases and it was further directed that evidence will be recorded only in Reference Case No. 133/87 which will be common in both the cases. It also no more in dispute that workman Rameshwar Tiwari was dismissed from the service on 21/22.11.80 and workman Janeshwar Tiwari was dismissed from service on 30.9.80. It is also not disputed that this Court on 16.8.2001 passed the interim order staying the operation of the impugned awards of the CGIT subject to the petitioner complying with the provision of Section 17B of the I.D. Act.
13. I do not find any merit in the contention of Shri Nair, learned senior counsel that enquiry was validly conducted and because documents and list of witness were not supplied to the workmen, it cannot be said that the departmental enquiry is vitiated. In that regard I have seen the findings arrived at by the CGIT vide its order dated 11.11.1991 and I am of the view that the reasons which are assigned are quite cogent. The management was duty bound to supply copies of documents on the basis of which changes were framed. Since admittedly this has not been done, I am of the view that the CGIT did not commit any error in quashing the proceeding of the departmental enquiry. The order of the CGIT dated 11.11.1991 in that regard is hereby affirmed.
14. However, there is substance in the submission of Shri Nair, learned senior counsel that the misconduct of misbehaviour, threatening and abusing superior officer Jaswant Singh has been proved against workman Janeshwar Tiwari. On going through para 5 of the award passed in Reference Case No. 133/87 it is gathered that the CGIT passed the order of reinstatement in favour of workman Rameshwar Tiwari because no evidence was led by the management either oral or documentary in his reference case. The findings arrived at by the CGIT in that regard are totally arbitrary and perverse because I have mentioned hereinabove that vide order dated 13.3.95 it was specifically directed by the CGIT that both the cases will be consolidated and common evidence will be recorded which will be read in both the cases. In other reference case the evidence was record and it very much on record.
15. On going through charge-sheet Annexure-P-3 dated 3rd July, 1980 against workman Janeshwar Tiwari it is gathered that in the mid night at 12.30 of 2.7.80 he entered unauthorizedly in the house of B. Choudhary, Colliery Manager and abused with filthy language to Jaswant Singh, Executive Engineer. (Civil) who was standing with others. On going through imputation of charge it is gathered that Janeshwar Tiwari rushed towards Jaswant Singh and assaulted and threw his turban from his head. The CGIT in the impugned award dated 4.12.98 held the charge not proved and misconduct not proved on the ground that workman Janeshwar Tiwari was acquitted by the appellate Court in Criminal Appeal No. 72/90 and secondly witnesses of the management, namely, P.K .Chatterjee and R.C. Yadav have not stated in their evidence that Janeshwar Tiwari either abused filthy abuses or manhandled Jaswant Singh . The evidence of victim Jaswant Singh has been ignored on the ground that his evidence is altogether different in the criminal Court and his evidence in the criminal case is contrary to his deposition which he made before the CGIT. This Court is of the view that the approach of the CGIT in that regard is arbitrary and erroneous to the law. Merely because a workman was acquitted by the criminal Court would not debar the CGIT to take an independent decision. The degree of proving a charge by the criminal Court and before the Labour Court are quite different and distinct. In the criminal Court the prosecution is obliged to prove the charge beyond all possible doubt and strict proof thereof is necessary while in the domestic enquiry it is not so necessary. Apart from the on going through the judgment of the Sessions; Court passed in appeal, it is gathered that there is a finding that workman Janeshwar Tiwari showered certain filthy abuses, but they were on account of provocation, as a result of which a doubt was treated and therefore by giving benefit of doubt the appeal was allowed and he was acquitted. In the case of Ajit Kumar Nag (supra) in para 11 the apex Court has held that merely because there is acquittal by the criminal Court the said order does not preclude the management from taking an action if it is otherwise permissible. The apex Court further held that the two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. The object of the criminal trial is to inflict appropriate punishment to the offender and the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. However, such strict rules of evidence and procedure would not apply in the department proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. Thus, merely Janeshwar Tiwari was acquitted in appeal by the criminal Court would not ipso facto absolve him from the liability under the disciplinary jurisdiction of the management. Therefore, this Court is unable to: digest the finding arrived at by the CGIT in that regard and directing reinstatement of Janeshwat Tiwari on the ground of his acquittal from the criminal Court. I may profitably rely another decision of Supreme Court in the case of Management of Krishnakali Tea Estate v. Akhil Bhartiya Chah Mazdoor Sangh and Anr. 2004 AIR SCW 5256.
16 The evidence of Jaswant Singh was not taken into consideration by the CGIT only on the ground that his evidence recorded in criminal case is otherwise. I have already held that the degree of proof in two proceedings is altogether different and merely because the workman has been acquitted; cannot be a ground to hold that he should be reinstated and misconduct is not proved. On going through the evidence of Jaswant Singh recorded before the CGIT it is gathered that Janeshwar Tiwari abused Jaswant Singh by saying "SALA MATHERCHOD SARDAR YAHA PARTY DETA HAIN WAHA MERA GHAR CHUTA HAI, KETNI BAR HUM KAHA LEKIN HAM LOGO KI GHAR KI MARAMMAT NAHI KARATA HAI". Thereafter it has also been stated by him that Janeshwar Tiwari came in front of and slapped him. Before he woke up from the shock again he slapped to this witness (Jaswant Singh) on his head as a result of which his turban fell down. This witness was cross examined and in the cross-examination the only question which was put-forth to him was in respect to the statement he made in the criminal trial. There is not at all any cross-examination on the material statement of this witness and, therefore, why his testimony should be disbelieved there is nothing in the order of the CGIT. Thus, I hold that in the enquiry misconduct of workman Janeshwar Tiwari is duly proved.
17. The Supreme Court in a recent decision M.P. Electricity Board v. Jagdish Chandra Sharma in similar facts and circumstances has held that use of abusive language against a superior, justifies punishment of dismissal. If that be the position regarding verbal assault the position regarding dismissal for physical assault must be found all the more justifiable. Discipline is a form of civilly responsible behaviour which helps maintain social order and contributes to the preservation, if not advancement, of collective interests of society at large.
18. So far as the misconduct of workman Rameshwar Tiwari is concerned, the CGIT in para 5 of its award has held that he evidence has been led by the management in order to prove the misconduct in Reference Case No. 133/87 pertaining to Rameshwar Tiwari. I have already held hereinabove that on going through the order-sheet dated 13.3.95 it is gathered that both the reference cases were consolidated and common evidence was recorded and, therefore, evidence is very much there and it is to be read for the purpose of reference case of workman Rameshwar Tiwari also.
19. On going through the award of the CGIT dated 7.12.1998 it is gathered since the workman Rameshwar Tiwari has been directed to be reinstated on the ground that no evidence has been led by the management to prove the misconduct, therefore, the award dated 3.12.98 in Reference Case No. 133/87 is hereby set aside and since the evidence has been led by the management as well as by the workmen, CGIT is directed to marshal the evidence and pass fresh award in regard to the point of misconduct. Since the matter is quite old, CGIT is hereby directed to pass the award as early as possible, preferably within a period of three months from today.
20. In the result W.P. No. 5090/99 is hereby allowed and final award of the CGIT dated 4.12.1998 passed in Reference Case No. 139-87 hereby quashed and the order of the management dismissing the services of workman Janeshwar Tiwari is hereby upheld. So far as W.P. No. 5089/99 is concerned, the same is hereby allowed in part. The award of the CGIT dated 3.12.1998 passed in Reference Case No. 133/87 is set aside and the case is remanded back to the CGIT to pass fresh award on the point of misconduct.
21. Looking to the facts and circumstances, the parties are directed to bear their own costs. Record of the CGIT be sent to it post haste.