Jharkhand High Court
Hira Singh vs Employers In Relation To The Management ... on 7 January, 2021
Equivalent citations: AIRONLINE 2021 JHA 460
Author: S.N. Pathak
Bench: S. N. Pathak
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No. 7333 of 2019
Hira Singh, son of Late Kulwant Singh, Resident of - Village - Bhaga
Old Bank, P.O. - Bhaga, P.S. - Bhaga, District - Dhanbad.
... ... Petitioner
VERSUS
Employers in relation to the Management of Lodna Colliery of M/s.
Bharat Coking Coal Limited, P.O. and P.S. - Lodna, District - Dhanbad.
... ... Respondent
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK For the Petitioner :Mr. Nikhil Kumar Mehta, Advocate.
Mr. Atul Rai, Advocate
For the Respondent : Mr. Amit Kumar Das, Advocate
10/07.01.2021 In view of outbreak of COVID-19 pandemic, case has been taken
up through Video Conferencing and heard at length. Concerned lawyers have no objection with regard to the proceeding which has been held through Video Conferencing and there is no complaint in respect to audio and video clarity and quality and after hearing at length, the matter is being disposed of finally.
PRAYER
2. Petitioner has approached this Court with a prayer for quashing the Award dated 19.05.2011, passed by the Presiding Officer, Central Government Industrial Tribunal No. 1 in Ref. No. 38/2007, whereby and whereunder the Tribunal has answered the reference against the concerned workman holding that action of the Management of Lodna Colliery of M/s. BCCL in dismissing the petitioner from the services of the Company with effect from 22.03.2003 is justified and he is not entitled to any relief.
FACTUAL MATRIX
3. The factual exposition as has been stated in the writ petition is that the petitioner's date of birth is 28.09.1977 and he was appointed in the respondent Company on 30.05.1996 as a Miner Loader under the VRS(F) RC 2 Scheme. By Order No. L-20012/ 59/ 2007-IR (CM-1), dated 12.07.2007, the Central Government in the Ministry of Labour in exercise of the powers conferred by Clause (d) of Sub-section (1) and Sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 referred the dispute for adjudication to the Central Government Industrial Tribunal No. 1 at Dhanbad which reads as under:
"Whether the action of the management of Lodna Colliery of M/s. BCCL in dismissing Shri Hira Singh, Loader from the services of the Company w.e.f. 22.03.2003 is justified and legal? If not, to what relief the concerned workman entitled?
4. The said reference was registered as Ref. No. 38 of 2007 and notices were issued upon the parties to file their respective written statement. Upon receipt of notices, parties filed their respective written statement. The sponsoring Union filed its written statement contending that the concerned workman/petitioner was issued a charge sheet dated 21.03.2003 on the charge of unauthorized absence from duties with effect from 23.10.2002. It was contended that the concerned workman remained absent from duties only for five months. As the workman received an information from his village that his mother was suffering from Paralysis, he left for his native village for better treatment of her mother. It was further contended that the concerned workman was not knowing the rules of the Company and as such he did not inform the authority concerned. Upon returning from the native village, the concerned workman represented before the authority concerned to allow him to resume his duties but his grievances were not heard. It was further contended that without assigning any concrete reason, the workman was dismissed from the services with effect from 22.03.2003. It was therefore contended to pass an Award in favour of the concerned workman with a direction to reinstate him in his service with full back wages for which the workman is entitled.
5. Management also appeared and filed its written statement alleging therein that workman-petitioner accepted his guilt during the course of enquiry. The enquiry officer submitted his report holding the charges to be proved and thereafter, final order of dismissal was passed vide letter no. BCCL/L/ A/ 2003/41/469, dated 22.03.2003.
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6. Thereafter, respective rejoinders were filed by the parties. The parties also exhibited documents relied upon by them and they also adduced their evidence and advanced arguments. Thereafter, the Tribunal, vide its Award dated 19.05.2011, passed by the Presiding Officer, Central Government Industrial Tribunal No. 1 in Ref. No. 38/2007, whereby and whereunder the Tribunal has answered the reference against the concerned workman holding that action of the Management of Lodna Colliery of M/s. BCCL in dismissing the petitioner from the services of the Company with effect from 22.03.2003 is justified and he is not entitled to any relief ARGUMENTS ON BEHALF OF THE PETITIONER-WORKMAN
7. Mr. Nikhil Kumar Mehta, learned counsel appearing on behalf of the petitioner assisted by Mr. Atul Rai, vehemently argues that the impugned Award dated 19.05.2011 is perverse, arbitrary and unjust and has been passed without appreciating facts and circumstances of the case. The Tribunal did not consider the fact that the petitioner- workman had accepted his guilt in domestic enquiry and had promised not to repeat the same in future and as such the Tribunal should have taken a lenient view and should have directed the management to reinstate him. Learned counsel further submits that petitioner is too young and has long service tenure and as such, a lenient view could have been taken in order to give him one more chance. The punishment is too harsh and disproportionate to the alleged misconduct and as such, it is a fit case for interference. To buttress his arguments, by citing ratio decided in Reference No. 9 of 2015, learned counsel submits that in the said case, the workman was dismissed from the service of the Company on the charge of unauthorized absence but the Tribunal, vide its Award dated 06.11.2017, directed the management to appoint the concerned workman as a fresher in lowest Category-I with two years' period on probation subject to medical fitness and furnishing an undertaking by him and without any backwages.
ARGUMENTS ON BEHALF OF THE RESPONDENT - MANAGEMENT
8. Mr. Amit Kumar Das, learned Counsel appearing on behalf of the respondent-BCCL argues that the Award has been passed in accordance with law and does not suffer from any illegality or infirmity. No RC 4 interference is called for and instant writ petition is fit to be dismissed. There is inordinate delay of 8 years in filing the instant writ petition after passing of the award on 19.05.2011 and there is delay of 16 years' after order of his termination dated 22.03.2003. Nothings remain to be decided when concerned employee has already accepted his guilt and kept mum for long years. The habitual absenteeism cannot be encouraged by taking lenient view. During the last three years' preceding to his dismissal, petitioner did not even put in at least 125 days' attendance. Principles of natural justice was duly followed. This writ petition is fit to be dismissed.
FINDINGS OF THE COURT
9. Be that as it may, having gone through the rival submission of the parties across the bar and after examination of documents brought on record, it appears that petitioner was in the habit of absenting himself from the duty. On earlier occasions also he was thrice charged for the same unauthorized absence i.e. right from 1998 to 2002, he absented from the duty for several days. Subsequently punishment was awarded to him. His past misconduct admittedly was not good though opportunity was provided to him to mend himself and to change his conduct, but his conduct shows that he was not interested in working with the management. The domestic enquiry has been held to be fair and proper vide order dated 18.03.2010, even ample opportunity was given in course of enquiry to the petitioner- workman. On the point of absenteeism, evidences were laid from both sides and taking into consideration, learned court below has rightly come to a finding that the order of dismissal by the management is fully justified.
10. In plethora of judgments it has been held that if it is proved that the findings of the Presiding Officer is perverse and is in complete violation of the principles of natural justice, this Court can interfere but nothing has been brought on record to show that there is any perversity in the findings of the learned Presiding Officer. The Apex Court in the case of Krushna Narayan Wanjari v. Jai Bharti Shikshan Sanstha, (2018) 12 SCC 620 has held as under:
"3. Having regard to the fact that the documents were produced before the High Court, we are of the view that the RC 5 High Court was not justified in refusing to look into the same. After all, the Industrial Court had looked into the entire materials and had awarded the salary for the disputed period. Unless the approach is wholly perverse in the sense that the Tribunal acted on no evidence, the High Court under Articles 226/227 is not justified in interfering with the award. It is not a court of first appeal to reappreciate the evidence. Therefore, the appeal is allowed and the impugned orders are set aside and the order dated 14-3-2012 passed by the Industrial Court, Nagpur Bench, Maharashtra is restored."
11. From perusal of records it also appears that this writ petition has been filed after a long delay of eight years after passing of the Award on 19.05.2011 and delay of 16 years after order of termination dated 23.03.2003. The Apex Court in a catena of decisions has clearly held that in service matters, inordinate delay cannot be taken lightly. The Hon'ble Apex Court in the case of Chennai Metropolitan Water Supply and Sewerage Board and others Vs. T.T. Murali Babu reported in (2014) 4 SCC 108 has held in para-17 as under:-
"17. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinise whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons -- who compete with "Kumbhakarna" or for that matter "Rip Van Winkle". In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."
On the application of the aforesaid principle to the facts of the present case, this Court is of the view that claim at a belated stage without any justifiable explanation for delay, has also frustrated claim of the petitioner-workman.
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12. As a sequel of the aforesaid guidelines, judicial pronouncements and facts and circumstances mentioned hereinabove, I find no case is made out for any interference and as such this writ petition is devoid of merits and accordingly stands dismissed.
(Dr. S.N. Pathak, J.) RC