Calcutta High Court
Farid Hossain vs National Industrial Tribunal And Ors. on 21 May, 2004
Equivalent citations: 2004(4)CHN267, (2005)IILLJ532CAL
Author: Soumitra Pal
Bench: Soumitra Pal
JUDGMENT Soumitra Pal, J.
1. The writ petitioner was a workman of Indian Airlines (hereinafter the authorities). That on 8.4.96 the petitioner went to Bangkok. After reaching Bangkok the petitioner was arrested by the local police on the charges of smuggling, sued in a Criminal Court, convicted, as he could not prefer appeal due to paucity of funds served the sentence and came back to Calcutta. While in Bangkok he was not conversant with the local language, he could not conduct his case properly. Being in difficulty he sought the assistance of the authorities which was refused. After returning the petitioner was allowed to join his duty. Thereafter, on 19.6.97 the petitioner was served with a show cause notice intimating as to why proposed punishment of dismissal should not be imposed on the petitioner since according to the authorities the petitioner committed a serious misconduct and was convicted in a Court of Law for a criminal offence amounting to moral turpitude. In reply to the said show cause the petitioner submitted it would not be just and proper to place the petitioner under dismissal in terms of Clause 28(32) of Standing Orders for factory workers of the authorities as the petitioner was never convicted for any alleged criminal offence involving moral turpitude. Clause 28(32) of the Standing Orders is reproduced hereunder:
"32. Conviction in any Court of Law for any criminal offence involving moral turpitude."
2. The jurisdiction of the authority to dismiss the petitioner without holding any formal domestic enquiry was also questioned. Ultimately, the authorities dismissed the petitioner from service. The petitioner by letter dated 31.7.97 was intimated of such dismissal. It was also intimated that as certain proceedings were pending before the respondent No. 1 under the Industrial Disputes Act, 1947 (hereinafter the Act) an application was simultaneously made under Section 33(2)(b) of the Act for approval of the said dismissal of the petitioner. In compliance with the provisions of Section 33(2)(b) of the Act a cheque equivalent to wages for one month was enclosed along with the letter. Thereafter, the petitioner received the notice along with an application under Section 33(2)(b) of the Act filed by the authorities. The petitioner submitted his written statement and prayed before the respondent No. 1 not to accord approval of the action as sought for by the authority since (a) the procedure as laid down in the Standing Orders was not adhered to while dismissing the petitioner by way of punishment and (b) the misconduct levelled for which the petitioner was dismissed from service without holding any domestic enquiry does not come within the scope of Clause 28(32) of the Standing Orders. Further conviction of the petitioner in a foreign Court was not for criminal offence involving moral turpitude. Submission was made that no one can be punished for a misconduct not enumerated in the Standing Orders. The respondent No. 1 by order dated 24.9.99 allowed the application and granted approval. Being aggrieved by such order the petitioner has filed the instant writ petition. Pursuant to directions, affidavit-in-opposition and the affidavit-in-reply have been filed. Written notes of arguments have been filed on behalf of the respondent Nos. 2, 3 and 4.
3. Mrs. Chameli Majumdar, learned advocate, appearing on behalf of the petitioner along with Mr. Ananta Kumar Lala submitted that during the proceedings in Bangkok the petitioner was a victim of circumstances as he was ignorant of the local language and made to sign some papers. Submission was made that no domestic enquiry was held after the petitioner replied to the said show cause notice. There was no application of mind, materials on record were not considered and the order of dismissal was bad in law. It was submitted that the approving authority i.e. the respondent No. 1 while passing the order ignored the Standing Orders of the authorities which provides for conducting domestic enquiry and as such the order passed by the respondent No. 1 was bad in law. Reliance was placed on the judgments of Bata Shoe Co. Put. Ltd. v. Third Industrial Tribunal and Ors., reported in 174 Lab IC 42, Borosil Glass Works Ltd. v. M. G. Chitale and Richard M. D'Souza, reported in 1974 LLJ 184, Indian Express & Chronical Press v. M. C. Kapoor, reported in 1974 LLJ 240, Shripad Shiuaram Kulkarni v. State of Maharashtra, and Uptron India Ltd. v. Shammi Bhan and Anr., in support of his contentions, Mrs. Majumdar submitted that since no domestic enquiry was conducted the respondent No. 1 ought not to have approved the dismissal of the petitioner from service and the writ petition challenging the order passed by the respondent No. 1 should be allowed.
4. Mr. R.N. Majumdar, learned advocate for the respondent Nos. 2, 3 and 4 appearing along with Mr. Susanta Pal submitted that admittedly the petitioner was convicted on the charges of smuggling in Thailand and was detained in jail for one year. The conviction was neither challenged by the petitioner nor set aside by the higher forum. Since the conviction of the petitioner for a criminal offence involving moral turpitude was a proven misconduct within the meaning of Clause 28(32) of the standing orders for the factory workers, the authorities decided not to hold any formal domestic enquiry. However, a notice to show cause was issued as to why punishment of dismissal should not be imposed upon the petitioner and the petitioner was allowed a personal hearing. Since the reply was not convincing the petitioner was dismissed from service. Submission was made that the order of dismissal by the authorities has not been challenged. The respondent No. 1 while approving the dismissal has dealt with the findings and unless the findings are found to be perverse there is no scope of the Writ Court to interfere. It was submitted that even if enquiry is held, the Enquiry Officer cannot question the order passed by a Competent Court. Submission was made that it is a settled position of law if no enquiry is held before imposing punishment, the management can straightaway adduce evidence before the Tribunal to substantiate the action of such imposition of punishment. Reliance was placed on the judgments of the Supreme Court in Delhi Cloth & General Mills Company v. Ludh Budh Singh, and Bharat Forge Co. Ltd. v. A.B. Zodge and Anr., . It was submitted that in the application made by the authorities before the respondent No. 1 for approval of the action under Section 33(2)(b) of the Act a specific prayer was made to the extent that in case respondent No. 1 came to a conclusion that the findings of the competent authority suffered from the infirmity and thus perverse, then the authorities should be given leave to adduce fresh evidence before the respondent No. 1 in order to substantiate the charges levelled against the petitioner. However, the respondent No. 1 approved the dismissal on the basis of records which were conclusive. Further relying upon a judgment in General Electric Company of India Ltd. v. Fifth Industrial Tribunal, West Bengal and Anr., reported in 1987(2) CLJ 305, it was submitted that the order of the respondent No. 1 does not operate as a res judicata so as to preclude the petitioner from having the matter referred to an Industrial Tribunal under Section 2A read with Section 10 of the Act preceded by conciliation proceedings under Section 12 of the Act.
5. Having heard the submissions I am of the view that the writ petition is without merit. The petitioner was sued in a Criminal Court and convicted. The petitioner served the sentence and came back. No sooner he came back show cause notice for dismissal was served. The petitioner in reply did not deny that he was convicted. Thus he came within the purview of Clause 28(32) of the Standing Orders. Domestic enquiry in the instant case under the Standing Orders was not required as the petitioner was charged for criminal offence and convicted. Yet the authorities gave opportunity to the petitioner to submit a reply to the show cause for dismissal and of hearing. Natural justice was meted out to the petitioner. Thereafter, the order of dismissal was passed. Since proceedings were pending before the respondent No. 1 the authorities made an application under Section 33(2)(b) of the Act for approving the dismissal of the petitioner from service. In such application the authorities prayed that if the findings of the competent authority suffered from any infirmity and thus perverse, leave should be granted to adduce fresh evidence in order to substantiate the charges levelled against the petitioner. However, as the respondent No. 1 found that the petitioner himself pleaded guilty and was convicted and imprisoned for committing the act of smuggling there was no necessity for proceeding with any further enquiry and there was nothing for the management to enquire by leading further evidence in view of the indisputable facts. In such circumstances the order of the respondent No. 1 was just and proper. The judgments cited by Mrs. Majumdar are not relevant in the facts and circumstances of the case. The approval by the respondent No. 1 of the action by the authorities was fully justified as the materials on record were conclusive.
6. Hence, the writ application is dismissed. No order as to costs.
7. Let urgent xerox certified copy of this judgment and order be furnished to the appearing parties on priority basis if applied for.