Orissa High Court
Vice President vs Presiding Officer on 4 February, 2020
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No. 9463 of 2019
An application under Articles 226 and 227 of the Constitution of
India.
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Vice President, Emami
Paper Mills Ltd. ......... Petitioner
-Versus-
Presiding Officer,
Labour Court
and another ......... Opp. Parties
For Petitioner: - Mr. Nitish Kumar Mishra
A.K. Roy, A. Mishra
S. Samantaray
For Opp. Party no.2: - Mr. Suvashis Pattnayak
S. Dash, S.S. Sahoo
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P R E S E N T:
THE HONOURABLE ACTING CHIEF JUSTICE KUMARI SANJU PANDA
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Judgment: 04.02.2020
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S. K. SAHOO, J. The petitioner has filed this writ petition seeking for a
direction to quash the impugned order dated 08.05.2015
(Annexure-4) passed by the Presiding Officer, Labour Court,
2
Bhubaneswar in Industrial Dispute Case No.428 of 1995 in
deciding the preliminary issue against the first party
management (petitioner in the writ petition) and holding that the
domestic enquiry conducted against the second party workman
(opposite party no.2 in the writ petition) was not valid. A further
prayer has been made in the writ petition to quash the award
dated 30.10.2018 (Annexure-5) directing the first party
management to reinstate the second party workman in service
with full back wages along with all other consequential service
benefits within one month from publication of the award by the
Government, failing which the second party would be entitled to
interest @ 6% per annum on the monetary benefit.
2. The reference which was made on 04.12.1995 by the
Government of Odisha, Labour and Employment Department in
exercise of the power conferred upon it by sub-section (5) of
section 12 read with clause (c) of sub-section (1) of section 10 of
the Industrial Disputes Act, 1947 (hereafter 'I.D. Act') to the
Presiding Officer, Labour Court, Bhubaneswar for adjudication is
as follows:
"Whether the action of the management of M/s.
Emami Paper Mills Ltd., Balgopalpur, Balasore in
dismissing Sri Muralidhar Das, Helper from
service w.e.f. 10.11.1994 is legal and/or
3
justified? If not, to what relief the workman is
entitled?"
3. It is the case of the opp. party no.2 workman that he
was appointed as helper in the establishment of the petitioner
w.e.f. August 1991. He along with other workers associated to
form a new Trade Union in the name of Emami Sramik
Karmachari Sangha for which the management became
vindictive and took action against him to victimize on illegal and
fabricated charges and suspended him during lock out period by
way of unfair labour practice. He was charge sheeted on
06.05.1994 and also suspended on that day just before
unauthorized lock out. He prayed to issue odia charge sheet to
submit his reply but the management did not issue the same and
despite that he denied the charges and agreed to appear in the
enquiry with his representative, but the management did not
allow his representative though the management appointed one
Advocate as an Enquiry Officer. It is the further case of the
opposite party no.2 that the Enquiry Officer was partial to the
management and basing upon the ex-parte enquiry, the
petitioner management dismissed him from service. The opposite
party no.2 prayed to set aside the enquiry and cancel the
4
dismissal order with a further prayer to reinstate him in service
with all service benefits.
4. The petitioner management filed its written
statement before the Labour Court stating therein that before
terminating the opposite party no.2 from his service, enquiry
was conducted but the opposite party no.2 did not participate in
the enquiry despite repeated opportunities being given to him.
The Enquiry Officer followed the principle of natural justice and
fairly conducted the enquiry and found the opposite party no.2
guilty of all charges and the management carefully considered all
the charges, the report of Enquiry Officer and the gravity of
incidents and thought it just and proper to terminate the
opposite party no.2 from his service for industrial peace and
discipline. It is further stated in the written statement that in the
event the Court did not accept the enquiry report as just and
fair, the management should be given an opportunity to adduce
evidence in support of the charge sheet framed against the
opposite party no.2.
5. The learned Tribunal framed the following issues:
"(i) Whether the domestic enquiry is fair and
proper.
(ii) Whether the action of the management of
M/s. Emami Paper Mills Ltd., Balgopalpur,
5
Balasore in dismissing Sri Muralidhar Das,
Helper from services w.e.f. 10.11.1994 is legal
and/or justified?
(iii) To what relief the workman is entitled to?"
The petitioner management filed a petition before the
learned Tribunal to decide issue no.(i) as preliminary issue which
was rejected vide order dated 05.09.2014. Against the said
order, the petitioner management preferred W.P.(C) No.17464 of
2014 before this Court which was disposed of as per order dated
21.10.2014 directing the learned Labour Court to decide issue
no.(i) as preliminary issue with a further direction that if the
finding of the preliminary issue goes against the petitioner
management, it should be given an opportunity to adduce
evidence in respect of the merit of the reference. Accordingly,
the learned Labour Court took up issue no.(i) as preliminary
issue. The second party workman (opposite party no.2)
examined himself as W.W.1 and proved twelve documents
marked as Exts.1 to 12 to substantiate that the domestic inquiry
conducted by the petitioner management was not valid one. The
first party management (petitioner) examined two witnesses and
proved documents marked as Exts. A to Z/2 on its behalf. The
Presiding Officer, Labour Court in its impugned order dated
08.05.2015 came to hold that the domestic enquiry was not a
6
valid one and accordingly, the preliminary issue was answered
against the petitioner management.
Assailing the impugned order dated 08.05.2015, the
petitioner management filed another writ petition before this
Court vide W.P.(C) No.9855 of 2015 which was disposed of as
per order dated 30.01.2018 directing the Labour Court to
proceed with the matter by affording opportunity to the parties
to lead evidence, without being influenced by the observations
made in the order dated 08.05.2015.
After remand of the case record, the petitioner
management examined four witnesses before the learned Labour
Court as M.W. Nos.3 to 6 on its behalf and placed reliance on a
number of documents marked as Exts.A to Z/2 which had
already been marked during the hearing of preliminary issue.
The opposite party no.2 examined himself as W.W. No.1 and
relied on thirteen documents marked Exts. 1 to 13, out of which
twelve documents had already been marked as Exts.1 to 12
during the hearing of preliminary issue.
6. The learned Labour Court in the impugned award
dated 30.10.2018 while adjudicating issue no.(ii) has been
pleased to hold that there is no dispute that the second party
workman was a helper in the establishment of the first party and
7
he joined under the management since August 1991 and he was
dismissed from service w.e.f. 10.11.1994 on the allegation of
misconduct. It is further held that the allegations made in para-7
and 8 of the charges (Ext.1) and para-2 of page-2 of the charges
(Ext.1) are vague and ambiguous and no proceeding should be
allowed to sustain on the basis of such vague allegations made in
the charge sheet. It is further held that on the close scrutiny of
the evidence led by the management, the charges could not be
proved against the workman. The management did not lodge
any complain with the local police station against the workman
alleging any misconduct and no station diary entry was also
proved in connection with the alleged occurrence which
according to the learned Labour Court creates reasonable
suspicion about happening of such occurrence. It is further held
that there is no cogent material to hold the charges as
sustainable rather it was found that charges were framed
intentionally so that the workman could be dismissed from his
service and the action of the management in dismissing the
opposite party no.2 from service was found to be illegal and
unjustified and accordingly, the first party management was
directed to reinstate the second party workman in service with
full back wages along with all other consequential service
8
benefits without one month from publication of the award by the
Government, failing which the second party workman would be
entitled to interest @ 6% per annum on the monetary benefit.
7. Mr. Nitish Kumar Mishra, learned counsel appearing
for the petitioner contended that the impugned order dated
08.05.2015 and the award dated 30.10.2018 passed by the
learned Labour Court are not sustainable in the eye of law. He
argued that the opposite party no.2 after initial appearance in
the domestic enquiry, remained absent willfully for which the
enquiry was conducted ex-parte and therefore, the opposite
party no.2 is precluded from raising any plea of prejudice and
bias against the Enquiry Officer. He further submitted that there
was no prejudice caused to the opp. party no.2 in the facts and
circumstances of the case and relied upon the decision of the
Hon'ble Supreme Court in the case of Chairman -cum-
Managing Director, Coal India Ltd. -Vrs.- Ananta Saha
reported in (2011) 5 Supreme Court Cases 142. It is further
contended that the learned Labour Court has committed error of
record in holding that there is absence of time of occurrence,
lack of F.I.R. or station diary and that the charges are vague,
ambiguous and unsustainable. Notwithstanding the erroneous
finding against the management as per preliminary issue no.(i),
9
the management adduced additional evidence of M.W. Nos. 3 to
6, whereas the workman examined himself alone on merits.
According to Mr. Mishra, all the management witnesses are eye
witnesses to the misconduct committed by the workman and
they have specifically proved the charges and the workman has
not been able to shake the credibility of such evidence in any
manner. It is argued that relying upon the original certified copy
of deposition in a criminal case in 2 C.C. Case No.184 of 1994
filed at the time of argument, the learned Labour Court has
rejected the evidence of all the management witnesses
pertaining to the incident of 05.05.1994 on the ground of vital
contradictions. The evidence relating to the incident of
28.03.1994 was also rejected as unreliable due to lack of F.I.R.
being lodged and the evidence relating to the incident of
01.05.1994 was not accepted on a wrong notion that the same is
not a misconduct due to the meeting held on May Day i.e.,
International Labour Day outside the factory premises. Mr.
Mishra further argued that in the impugned award, the learned
Labour Court has erroneously discarded the evidence on merit
tendered by the management witnesses on unjust and erroneous
consideration of extraneous materials like evidence adduced by
M.W. No.5 in a criminal proceeding as P.W.2 even though such
10
evidence was never confronted to M.W. No.5 as per the provision
under section 145 of the Evidence Act as well as the settled
principle governing such cases as laid down by the Hon'ble
Courts. Reliance was placed on the Full Bench decision of
Allahabad High Court in the case of Ajodhya Prasad Bhargava
-Vrs.- Bhawani Shankar Bhargava reported in A.I.R. 1957
Allahabad 1. It is further argued that while the plea of the
workman is that he was not a party to the criminal proceeding,
evidence of M.W. No.5 as P.W.2 and the ultimate judgment in
the said proceeding have been used and accepted by the learned
Labour Court. Placing reliance on the decision of the Hon'ble
Supreme Court in the case of Shashi Bhusan Prasad -Vrs.-
Inspector General reported in (2019) 7 Supreme Court
Cases 797, it is argued that the degree of proof in a disciplinary
proceeding and criminal proceeding are distinct and different
inasmuch as the disciplinary proceedings are proved on the basis
of preponderance of probabilities whereas a criminal offence
requires proof beyond all reasonable doubt. According to Mr.
Mishra, there is no bar to charge sheet an employee in the
absence of F.I.R. as misconduct in employment are internal
matters which are to be dealt under the Code framed for such
purposes.
11
Mr. Suvashis Pattnayak, learned counsel appearing
for the opposite party no.2 on the other hand supported the
impugned order of the learned Labour Court holding the
domestic enquiry as invalid while deciding the preliminary issue
as well as the award of reinstatement with full back wages along
with consequential service benefits. He argued that the scope of
interference with an award of the learned Labour Court by this
Court exercising jurisdiction under Article 226 of the Constitution
of India by issuing a writ of certiorari has been well settled in the
case of Syed Yakoob -Vrs.- K.S. Radhakrishnan reported in
A.I.R. 1964 S.C. 477 by a Constitution Bench of the Hon'ble
Supreme Court and this Court exercising such jurisdiction is not
entitled to act as an appellate Court. He argued that when the
findings recorded by the Labour Court are not perverse or
irrational or arrived at by ignoring materials on record or
arbitrary or contrary to the principles of natural justice, the same
should not be interfered with by this Court and the writ petition
should be dismissed.
8. Domestic enquiry in an industrial establishment is
governed by the Standing Orders applicable thereto and it is
required to be conducted in terms of such Standing Orders. Even
though it was argued before the learned Labour Court that the
12
Enquiry Officer conducted the enquiry in accordance with the
provisions laid down in the Certified Standing Order of the
company but no such Standing Order was filed nor proved during
the hearing by the petitioner management. Law is well settled
that even if specific rules have not been provided, then general
principles of enquiry have to be adopted in case of domestic
enquiry which requires that a charge sheet has to be served by
the concerned authority of the institution to the employee
indicating the specific charges against him and by appointing an
Enquiry Officer, the enquiry has to be conducted in consonance
to the principles of natural justice and in case of non-cooperation
by the employee, the enquiry may also be conducted ex-parte on
the basis of available documents and witnesses and on analysis
of material documents and records referred and relied upon, that
too, in consonance to the principles of natural justice and on the
basis of the fact-finding report rendered by the Enquiry Officer,
the competent authority may take appropriate subsequent
decision.
In the case of Ananta Saha (supra), the Hon'ble
Supreme Court has held that in case the delinquent does not
participate or cooperate in the enquiry, the Enquiry Officer may
proceed ex-parte passing an order recording reasons.
13
When issue no.(i) was framed by the learned Labour
Court with regard to the fairness of the domestic enquiry against
the opposite party no.2 workman and a petition filed by the
petitioner management to decide the issue no.(i) as preliminary
issue was turned down by the learned Labour Court, on being
approached by the petitioner management, this Court in W.P.(C)
No.17464 of 2014 directed the learned Labour Court to decide
the issue no.(i) as preliminary issue.
During adjudication of preliminary issue, the Enquiry
Officer was examined by the first party management as M.W.2.
It appears from his evidence that notice was issued to the
second party workman on 06.08.1994 vide Ext.Q to attend the
enquiry on 18.08.1994 but the workman did not turn up to
participate in the hearing and ultimately the case was posted for
hearing to 19.10.1994 and on that day, the workman was set
ex-parte. The order sheet of the Enquiry Officer indicates that in
all the dates posted for enquiry, he directed the second party
workman to produce his witnesses and documents. The
management was not directed first to produce its witnesses and
documents. Therefore, we are of the view that while adjudicating
the preliminary issue regarding validity of domestic enquiry, the
learned Labour Court rightly held in the impugned order dated
14
08.05.2015 that the Enquiry Officer followed a wrong procedure
by asking the second party workman to produce his witness first
inasmuch as in such domestic enquiry, it was the duty of the
management first to prove the allegations made against the
second party workman by leading evidence and thereafter, the
second party workman would have been asked to produce his
witnesses and documents.
It is the case of the opposite party no.2 workman
that the first party management did not supply the relevant
documents relied upon by it during domestic enquiry along with
charge sheet supplied to him in spite of his repeated request, on
the other hand he was asked to submit his explanation within
seven days of receipt of charge sheet. According to the opposite
party no.2, non-supply of material documents has caused serious
prejudice to him.
After examination of witnesses from the respective
sides and proof of documents during hearing of the preliminary
issue, the learned Labour Court on perusal of the record found
that the first party management has not supplied any document
along with the charge sheet to the second party workman. The
Court took into account two letters proved by the second party
workman marked as Ext.5 which is dated 30.06.1994 and Ext.7
15
which is the letter dated 14.07.1994 which were issued by the
workman to the management asking for documents relied on by
the first party management in the charge sheet. The learned
Labour Court held that no such documents as was sought for by
the workman in Exts.5 and 7 were supplied to him by the
management at the time of issuance of charge sheet or prior to
recording of evidence by the Enquiry Officer. The learned Labour
Court further took into account a document marked as Ext.6
issued by the management to the second party workman which
is dated 06.07.1994, wherein it is mentioned by the
management that the copies of the documents which are
required to be produced by the management at the time of
enquiry to prove the charges would be supplied to the second
party before the commencement of enquiry. Accordingly, it was
held that Ext.6 indicates that till its issuance, no document was
supplied to the second party workman. The learned Labour Court
further held that the management relied on a lot of documents
like Exts. A, B, C, D and E which were also utilized against the
second party workman during the domestic enquiry but those
documents were not supplied to the workman by the
management.
16
In the case of Chandrama Tewari -Vrs.- Union of
India reported in A.I.R. 1988 S.C. 117, it is held as follows:-
"It is now well settled that if copies of relevant
and material documents including the
statements of witnesses recorded in the
preliminary enquiry or during investigation are
not supplied to the delinquent officer facing the
enquiry and if such documents are relied in
holding the charges framed against the officer,
the enquiry would be vitiated for the violation of
principles of natural justice. Similarly, if the
statements of witnesses recorded during the
investigation of a criminal case or in the
preliminary enquiry are not supplied to the
delinquent officer that would amount to denial of
opportunity of effective cross-examination. It is
difficult to comprehend exhaustively the facts
and circumstances which may lead to violation
of principles of natural justice or denial of
reasonable opportunity of defence. This question
must be determined on the facts and
circumstances of each case. While considering
this question, it has to be borne in mind that a
delinquent officer is entitled to have copies of
material and relevant documents only which
may include the copies of statements of
witnesses recorded during the investigation or
preliminary enquiry or the copy of any other
document which may have been relied in
17
support of the charges. If a document has no
bearing on the charges or if it is not relied by
the enquiry officer to support the charges or if
such document or material was not necessary
for the cross-examination of witnesses during
the enquiry, the officer cannot insist upon the
supply of copies of such documents, as the
absence of copy of such document will not
prejudice the delinquent officer. The decision of
the question whether a document is material or
not will depend upon the facts and
circumstances of each case."
In the case of State of U.P. -Vrs.- Shatrughan Lal
reported in A.I.R. 1998 S.C. 3038, it is held as follows:-
"Now, one of the principles of natural justice is
that a person against whom an action is
proposed to be taken has to be given an
opportunity of hearing. This opportunity has to
be an effective opportunity and not a mere
pretence. In departmental proceedings where
charge sheet is issued and the documents which
are proposed to be utilised against that person
are indicated in the charge sheet but copies
thereof are not supplied to him in spite of his
request, and he is, at the same time, called
upon to submit his reply, it cannot be said that
an effective opportunity to defend was provided
to him."
18
In the facts and circumstances of the case, we find it
impossible to hold that the opp. party no.2 workman was
afforded reasonable opportunity to meet the charges leveled
against him. Whether or not refusal to supply copies of
documents or statements has resulted in prejudice to the
employee facing the departmental inquiry depends on the facts
of each case. We are not prepared to accede to the submission
urged on behalf of the learned counsel for the petitioner that
there was no prejudice caused to the opp. party no.2 and that he
is precluded from raising any plea of prejudice.
9. It is needless to mention that when the impugned
order dated 08.05.2015 passed by the learned Presiding Officer,
Labour Court in deciding the preliminary issue against the
petitioner management was challenged by the petitioner in
W.P.(C) No.9855 of 2015, this Court as per order dated
30.01.2018 did not delve into the merits of such order rather
directed the learned Labour Court to proceed with the matter by
affording opportunity to the parties to lead evidence, without
being influenced by any observation made in such order.
Law is well settled that before proceeding with the
domestic enquiry against a delinquent, he must be informed
clearly, precisely and accurately the charges leveled against him
19
and the charge sheet should specifically set out all the charges
which the workman is called upon to show cause against and
should also state all relevant particulars without which he cannot
defend himself properly. The object of such requirement is that
the delinquent employee must know what the charges against
him are and the nature of misconduct alleged against him and he
must get ample opportunity to meet such charges and to defend
him by giving proper explanation. If the charges are not precise
and definite, the delinquent employee would not be able to
understand those charges and defend himself effectively and in
such a case, it cannot be said to be a fair and just enquiry. In
the case of The Government of Andhra Pradesh -Vrs.- A.
Venkata Rayudu reported in (2007) 1 Supreme Court
Cases 338, it is held that a charge sheet should not be vague
but should be specific. In the case of Zunjarrao Bhikaji
Nagarkar -Vrs.- Union of India reported in (1999) 7
Supreme Court Cases 409, it is held that initiation of
disciplinary proceedings against an officer cannot take place on
an information which is vague or indefinite.
The learned Labour Court examined the validity of
the charge memo issued to the second party workman and found
that in paragraphs 7 and 8 of the charges (Ext.1), there is no
20
specific mention of date of the alleged occurrence and in
paragraph 9 of the charges, there is no specific mention of time
of such alleged occurrence.
According to Mr. Mishra, the learned Labour Court
has made unjust and erroneous consideration of extraneous
materials like evidence adduced by M.W. No.5 Prakash Nagar in
a criminal proceeding as P.W.2 even though such evidence was
never confronted to M.W. No.5 as per the provision under section
145 of the Evidence Act. According to him, the original certified
copy of deposition of P.W.2 in the criminal case i.e. 2 C.C. Case
No.184 of 1994 was filed at the time of argument.
It appears that co-workman Radhakrishna Maharana
and Santosh Kumar Maharana were facing criminal trial relating
to an incident which took place on 05.05.1994 in the Court of
learned S.D.J.M., Balasore in the aforesaid 2 C.C. Case No.184 of
1994 and M.W. No.5 Prakash Nagar was examined in the said
case as P.W.2. Learned Labour Court took into account the
admission made by M.W.5 in his cross-examination that he had
adduced evidence in relation to the fact of the case before the
learned S.D.J.M., Balasore. Even though the evidence of Prakash
Nagar as P.W.2 in the criminal proceeding was not confronted to
him when he was examined as M.W. No.5 but all the same, the
21
learned Labour Court compared the evidence adduced by the
said Prakash Nagar as M.W.5 vis-a-vis as P.W.2 and held that
there are vital contradictions in the evidence.
Now, the question comes up for consideration
whether the learned Labour Court was justified in comparing the
evidence of Prakash Nagar in two different proceedings. It
cannot be lost sight of the fact that the opposite party no.2 was
not facing trial in 2 C.C. Case No.184 of 1994 but two of his co-
workers were facing the same. Even though the incident in
question relates to 05.05.1994 in connection with which Prakash
Nagar gave evidence in both the proceedings and his attention
was not drawn to the relevant parts of his evidence as P.W.2
when he was examined as M.W. No.5 and such evidence was
only produced at the time of argument but all the same,
everything depends upon the applicability of the Evidence Act to
an Industrial Disputes Act proceeding. In the case of R.M.
Yellatti -Vrs.- The Assistant Executive Engineer reported
in A.I.R. 2006 S.C. 355, it is held that the provisions of the
Evidence Act in terms do not apply to the proceedings under
section 10 of the Industrial Disputes Act. In the case of
Municipal Corporation, Faridabad -Vrs.- Siri Niwas
reported in (2004) 8 Supreme Court Cases 195, it is held
22
that the provisions of the Indian Evidence Act per se are not
applicable in an industrial adjudication. The general principles of
it are, however applicable. The decision relied upon by the
learned counsel for the petitioner in the case of Ajodhya Prasad
Bhargava (supra) is not regarding the applicability of section
145 of the Evidence Act to an Industrial Disputes Act proceeding
rather it was in the context of adjudication of a civil suit
proceeding. Therefore, we are not inclined to place any reliance
on such decision. However, we are of the view that the method
adopted by the learned Labour Court in comparing the evidence
of Prakash Nagar in two different proceeding to find out
contradictions particularly when the opp. party no.2 was not an
accused in the criminal case proceeding, was not proper and
justified.
M.W. No.5 Prakash Nagar in his evidence affidavit in
paragraph 4 has stated about the misconduct of opp. party no.2
in the incident dated 05.05.1994. However, in the cross-
examination he has admitted that he was not present at the spot
and also at the relevant time during the incident as described by
him under paragraph 4 of his affidavit upon which F.I.R. was
lodged by the Management. He further stated that no F.I.R. was
lodged with regard to the alleged incident dated 05.05.1994.
23
Therefore, the evidence of M.W. No.5 relating to the incident
dated 05.05.1994 alleging misconduct against opp. party no.2 is
not acceptable. Though M.W. No.5 stated in his evidence
affidavit relating to some incident stated to have taken place on
28.03.1994 in paragraph 6 but in paragraph 23 of his cross-
examination, he stated that he did not remember whether any
show cause notice was issued by the management in relation to
the incident dated 28.03.1994 and he admits that no F.I.R. was
lodged with regard to the alleged incident dated 28.03.1994.
Even though M.W. No.5 stated that on 01.05.1994 the opp.
party no.2 and other workers organized a meeting in front of the
factory main gate without obtaining any permission from the
concerned authority and persuaded the willing workmen not to
join the duty on that day and threatened them with dire
consequence in case they join their duties but the learned
Tribunal analysed the evidence and held that if at all any
meeting was organized on the 'May Day' i.e. International
Workers Day which is a holiday and that too outside the factory
premises, the same can by no stretch of imagination be
construed as misconduct in employment and no charge sheet
can be sustained for such alleged act.
24
The learned Labour Court also analysed the evidence
of other witnesses like M.W. No.3 Om Prakash Sharma, M.W.
No.4 Padma Lochan Nayak and M.W.6 Kajol Ray Chowdhury
examined by the management and found the same to be not
reliable and trustworthy. All these three witnesses stated about
the incident that took place on 05.05.1994 in which the opposite
party no.2 workman and others stated to have entered inside the
chamber of M.W. No.5 forcibly and unauthorizedly and
demanded withdrawal of show cause letters issued against two
workmen and ultimately M.W. No.5 was rescued by police. Since
M.W. No.5 himself states that he was not present at the spot on
that day, the evidence of these three witnesses do not inspire
confidence. It was further held by the learned Labour Court that
no station diary entry was proved relating to the alleged
occurrence which creates reasonable suspicion about its
happening. The learned Court found that there is no cogent
material to hold the charges as sustainable rather the charges
were framed intentionally so that the workman could be
dismissed from his service. The findings recorded by the Court
are neither perverse nor irrational. In the case of Shashi
Bhusan Prasad (supra), it is held that the two proceedings
criminal and departmental are entirely different and they operate
25
in different fields and have different objections. Even if do not
consider the evidence of M.W. No.5 as given in the criminal case
relating to the incident dated 05.05.1994, we find as per the
discussion above that the evidence of the management
witnesses are not acceptable to sustain the charges which are
also defective as pointed out in the impugned award. A finding of
fact cannot be challenged on the ground that relevant materials
and evidence adduced before the Court below was insufficient or
inadequate to sustain the findings. The adequacy or sufficiency
of evidence and the inferences to be drawn from the evidence
are the exclusive domain of the Court below and the same
cannot be agitated before this Court. Even if another view is
possible on the evidence adduced before the learned Court
below, this Court would not be justified to interfere with the
findings recorded by the Court. When the findings recorded by
the Court are perverse or irrational or arrived at by ignoring
materials on record or arbitrary or contrary to the principles of
natural justice, the same can be interfered with by this Court in a
petition under Article 226 of the Constitution. (Ref:-A.I.R. 1964
S.C. 477, Syed Yakoob -Vrs.- K.S. Radhakrishnan)
10. In view of the foregoing discussions, we do not find
any perversity or error apparent on record or illegality in the
26
impugned order dated 08.05.2015. We also agree with the view
taken by the learned Labour Court in the impugned award dated
30.10.2018 that the action of the petitioner management in
dismissing the opp. party no.2 workman with effect from
10.11.1994 was not legal or justified.
11. The question that now remains for consideration is
whether the order of reinstatement with full back wages along
with all other consequential service benefits in favour of the opp.
party no.2 as was directed by the learned Labour Court is also to
be confirmed or not or any other relief is to be granted to the
opposite party no.2 in the interest of justice.
In the case of Asst. Engineer, Rajasthan Dev.
Corp. & Another -Vrs.- Gitam Singh reported in (2013) 5
Supreme Court Cases 136, the Hon'ble Supreme Court held
that it can be said without any fear of contradiction that the
Supreme Court has not held as an absolute proposition that in
cases of wrongful dismissal, the dismissed employee is entitled
to reinstatement in all situations. It has always been the view of
the Supreme Court that there could be circumstance(s) in a case
which may make it inexpedient to order reinstatement.
Therefore, the normal rule that the dismissed employee is
entitled to reinstatement in cases of wrongful dismissal has been
27
held to be not without exception. Insofar as wrongful termination
of daily-rated workers is concerned, the Supreme Court has laid
down that consequential relief would depend on post of factors,
namely, manner and method of appointment, nature of
employment and length of service. Where the length of
engagement as daily wager has not been long, award of
reinstatement should not follow and rather compensation should
be directed to be paid. It was further held that a distinction has
to be drawn between a daily wager and an employee holding the
regular post for the purposes of consequential relief. In the said
case, the Hon'ble Supreme Court set aside the order of the
learned Single Judge as well as the Division Bench of the High
Court in confirming the award of the Labour Court in directing
reinstatement of the respondent Gitam Singh and also 25% of
back wages and held that compensation of Rs.50,000/- by the
appellant to the respondent shall meet the ends of justice.
Similar view has been taken by the Hon'ble Supreme Court in
the cases of State of M.P. and others -Vrs.- Lalit Kumar
Verma reported in (2007) 1 Supreme Court Cases 575,
Uttaranchal Forest Development Corporation -Vrs.- M.C.
Joshi reported in (2007) 9 Supreme Court Cases 353, Sita
Ram and others -Vrs.- Motilal Nehru Farmers Training
28
Institute reported in (2008) 5 Supreme Court Cases 75,
Ghaziabad Development Authority -Vrs.- Ashok Kumar
reported in (2008) 4 Supreme Court Cases 261 and Jagbir
Singh -Vrs.- Haryana State Agriculture Marketing Board
and another reported in (2009) 15 Supreme Court Cases
327. The aforesaid view has also been reiterated by this Court in
the case of Executive Engineer, Badanala Irrigation
Division, Kenduguda -Vrs.- Ratnakar Sahoo and another
reported in 2011 (Supp.I) Orissa Law Reviews 556.
In the case of District Development Officer -Vrs.-
Satish Kantilal Amrelia reported in (2018) 12 Supreme
Court Cases 298, it is held that even though the termination
was bad due to violation of section 25-G of the I.D. Act but it
would be just, proper and reasonable to award lump sum
monetary compensation to the respondent in full and final
satisfaction of his claim of reinstatement and accordingly a total
sum of Rs.2,50,000/- was directed to be paid to the respondent
in lieu of his right to claim reinstatement and back wages in full
and final satisfaction of the dispute.
It is not in dispute that the opp. party no.2 was
appointed as a helper w.e.f. August 1991 and he was terminated
from his service w.e.f. 10.11.1994. The opp. party no.2 is now
29
aged about 56 years as mentioned in his Vakalatnama filed on
18.11.2019. Considering the nature of his employment, his age,
passage of 25 years since the date of termination, we are of the
view that in the peculiar facts and circumstances of the case, the
direction of reinstatement in service to the opposite party no.2 is
not sustainable in the eye of law. However, taking into account
the length of period he faced litigation in different forums, the
litigation costs incurred by him, his sufferings and the fact that
we are not in favour of his reinstatement, we are of the humble
view that in lieu of his reinstatement, full back wages along with
all other consequential service benefits as was directed by the
learned Labour Court, an amount of compensation of
Rs.3,00,000/- (rupees three lakhs only) in favour of opp. party
no.2 would be just, proper and reasonable. The petitioner shall
pay the compensation amount to the opp. party no.2 within a
period of three months from today.
With the aforesaid observation, the writ petition is
disposed of.
.......................
S.K. Sahoo, J.
S. Panda, A.C.J. I agree.
......................
S. Panda Acting Chief Justice Orissa High Court, Cuttack The 4th February 2020/Pravakar/Sisir/RKM/Sukanta