Jharkhand High Court
The Management Of Bokaro Steel Plant Of ... vs Amarwa Devi on 22 April, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 81 of 2017
----
The Management of Bokaro Steel Plant of Steel Authority of India Limited, having its office at Bokaro Steel City, P.O. & P.S. Bokaro Steel City, District Bokaro, through Mr. J.T. Kongari, son of Late P.L. Kongari working as Deputy General Manager (Law), Steel Authority of India, Bokaro Steel Plant, P.O. and P.S. B.S. City, District Bokaro (Jharkhand).
... ... Appellant/Petitioner
Versus
1.Amarwa Devi, wife of Late R.B. Bhuiyan
2.Rakesh Bhuiyan.
3.Chandan Bhuiyan
4.Goma Bhuiyan
5.Gola Bhuiyan.
Sl. Nos. 2 to 5, son of Late R.B., Bhuiyan.
All resident of C/o Bharti Devi, Qr. No. 1191, Streel- VIII/C, Bokaro Steel City, P.O. and P.S. B.S. City, District Bokaro ... ... Respondents/Respondents
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI
------
For the Appellant : Mr. Indrajit Sinha, Advocate Mr. Arpan Mishra, Advocate For the Respondents : Mr. Pradeep Kumar Deomani, Amicus
--------
nd Order No. 24 : Dated 22 April, 2024 Sujit Narayan Prasad, J:
Prayer
1. The instant appeal, under Clause 10 of the Letters Patent, is directed against order dated 07.09.2016 passed by learned Single Judge in W.P. (L) No. 5556 of 2005 whereby and whereunder the award answering the reference dated 06.10.1998 holding the order of dismissal of the workman to unjustified, has been upheld.-1-
2. At the outset, it needs to refer herein that Co-ordinate Bench of this Court vide order dated 22.10.2018 directed to issue notice upon the respondents, who are legal heirs of deceased-workman, both under ordinary process and registered post. The notice was returned un-served with the endorsement 'addressee left‟. Accordingly, vide order dated 03.12.2018 fifteen days' time was granted for substituted service. The Co-ordinate Bench vide order dated 28.01.2019 directed that apart from Newspaper publication, let service be effected following the mode prescribed under Order 5 Rule 20 of the Code of Civil Procedure. Pursuant to order dated 28.01.2019 though newspaper publication of the notice was made, which was brought on record by way of supplementary affidavit, but the co-ordinate Bench took note of the fact that since the notice was published in daily newspaper 'Hindustan' Dhanbad edition on 26.01.2019 and the respondents are the substituted heirs of the workman and further the paper publication was necessitated due to the report that the respondents had left the place, as such this paper publication is nothing but an eye-wash, and has no meaning in the eyes of law. The newspaper publication of the notice had to be made at the native place of the workman, which address must be available with the appellant. Accordingly, directed for fresh newspaper publication of the -2- notice after ascertaining the permanent address of the deceased-workman concerned, in the daily newspaper having wide circulation at the native place of the workman.
3. Pursuant thereto, supplementary affidavit was filed on behalf of State but the supplementary affidavit was found to be not in full compliance of order dated 06.01.2020, as would appear from order dated 16.03.2020. Accordingly, time was granted to file fresh supplementary affidavit in this regard.
4. Accordingly, the Co-ordinate Bench taking note of the fact that in spite of substituted mode of service through paper publication since none appears on behalf of respondent nos. 1 to 5, who are the legal heirs and successors of the deceased-workman, appointed Mr. Pradeep Kumar Deomani, the learned counsel as Amicus to argue the matter on behalf of respondents, reserving a right with the respondents to engage a counsel of their choice.
Facts of the case:
5. Brief facts of the case, as per the pleading available on record reads as under:
6. The original respondent-workman was appointed as Gas Helper in the year 1972 in the petitioners' company. It is alleged that the concerned workman absented on several occasions, as such a charge-sheet was served upon him for willful absence from duty for 35 days without sufficient cause -3- and for negligence in duty. After submission of charge-sheet, the enquiry committee was constituted and in spite of granting several opportunities to the workman to defend his case before the enquiry committee he failed to appear.
7. Later on, although the workman appeared on 23.12.1993 but could not give proper defense to the charge leveled against him. In the domestic enquiry, the charge leveled against the workman was found to be proved.
Consequent thereupon vide order dated 11.03.1994 the workman was dismissed from service of the company.
8. After dismissal from service, the workman raised an industrial dispute which was referred by the appropriate government for adjudication under Section 10(1)(c) of the Industrial Disputes Act, 1947 as to whether the termination of services of Sri R.B. Bhuiya, Workman Staff No. 190041 BMP Coke-Oven and B.P.P. by the Management of M/s Bokaro Steel Plant, Bokaro Steel City of the charge of unauthorized absence is proper? If not, what relief the workman is entitled to.
9. Before the labour court, the proceeding started, wherein the workman has taken the ground that the domestic enquiry has not been conducted fairly.
10. The learned labour court, after finding the fact from the record that there is violation of principles of natural justice to -4- the effect that the second show cause notice was not issued and further the copy of enquiry report was not furnished hence the said enquiry has been considered to be unfair.
11. It further appears from the impugned order itself that on the prayer made by the management, the question with regard to the fairness and propriety of the domestic enquiry was taken up for decision as preliminary issue vide order dated 18.12.2002 and taking into consideration the fact that the copy of enquiry report was not supplied to the workman concerned as also second show cause notice was not served upon him, the enquiry was held to be unfair.
12. However, the learned Labour Court basing upon the ratio laid down by Hon'ble Apex Court in the case of The workmen of M/s Firestone Tyre Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors. [(1973) 1 SCC 813] has provided opportunity to the workman as also the management to adduce their evidence.
13. The evidence has been led on behalf of both the parties. It appears from the award that the learned labour court has found the charge of unauthorized absence conclusively proved. But the learned labour court by agreeing with the argument advanced on behalf of workman that due to non- supply of enquiry report and not serving with the second show cause has observed that prejudice has been caused to -5- the workman. In this regard, reference of judgment rendered by Hon'ble Apex Court in the case of Managing Director ECIL, Hydrabad Vs. B. Karunakar [(1993) 4 SCC 727] has been taken aid of.
14. The learned labour court, after hearing the parties and taking into consideration the evidence adduced by the parties [both oral and documentary], passed the order by answering the reference in favour of workman holding the decision of the dismissal of the workman to the unjustified with a further direction that workman be reinstated in service along with back wages to the extent of 50%, against which, the management moved before this Court by filing writ petition being W.P.(L) No. 5556 of 2005.
15. The learned Single Judge, agreeing with the view taken by learned labour court so far it relates to prejudice caused due to the non-supply of enquiry report and non-issuance of second show cause notice, upheld the award, which is the subject matter of present appeal.
Submission on behalf of appellants-Management:
16. Mr. Indrajit Sinha, learned counsel assisted by Mr. Arpan Mishra, learned counsel for the appellants- management has taken the following ground in assailing the impugned order passed by the learned Labour Court and the learned Single Judge:
-6-
I. The question of causing prejudice is not available since the learned labour court has allowed a chance to adduce evidence to both the parties on the charge leveled against the workman. The contention has been raised that the reason to consider the domestic enquiry to be unfair was non-supply of enquiry report and not issuing the second show cause notice but the learned labour court has allowed the parties to adduce evidence, both oral and documentary, by relying upon the judgment rendered by Hon'ble Apex Court in the case of The workmen of M/s Firestone Tyre Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors.
(supra), pursuant thereto both the parties have adduced evidence, as such according to learned counsel the ground of prejudice cannot be said to be available with the workman.
II. It has been contended that once the imputation of remaining unauthorized absence and habitual unauthorized absence has been found to be substantially proved on the basis of evidence led on behalf of parties in course of adjudication by learned labour court then again relying the ground as was available in course of domestic enquiry to the effect of causing prejudice due to non-supply of enquiry report -7- and not serving the second show cause cannot be said to be proper.
III. The learned labour court as also the learned Single Judge has relied upon the judgment rendered by Hon'ble Apex Court in the case of Managing Director ECIL, Hydrabad Vs. B. Karunakar (supra) but the said judgment in the facts and circumstances of the present case will not be applicable hence according to learned counsel the award passed by learned labour court as also the order passed by learned Single Judge suffers from error and are not sustainable in the eyes of law.
Submissions on behalf of respondents-workman
17. Mr. Pradeep Kumar Deomani, learned Amicus appearing for the respondents, who are the substituted legal heirs of the workman, defending the order passed by the learned labour course as also the order passed by learned Single Judge, has submitted, by referring to paragraph 41-A of the judgment rendered by Hon'ble Apex court in the case of The workmen of M/s Firestone Tyre Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors. (supra), that the adjudicator i.e., the labour court herein, is competent enough to pass order on the quantum of punishment if it needs that the gravity of -8- punishment imposed is not in commensurate with the punishment.
18. According to learned counsel, the allegation of unauthorized absence is only of 35 days, hence the punishment of dismissal from service, as imposed upon the workman, is highly excessive, as such in that view of the matter, the learned Single Judge if has not interfered with the award, the same cannot be said to suffer from error.
19. The argument has been advanced that in view of ratio laid down by Hon'ble Apex Court, as under paragraph 41-A of in the case of The workmen of M/s Firestone Tyre Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors. (supra) it was incumbent upon the learned labour court to mould the relief part on the ground of quantum of punishment holding the order of dismissal to be excessive even accepting that the charge of unauthorized absence is found to be proved.
20. Learned amicus based upon the aforesaid ground has submitted that the learned Single Judge, after taking into consideration the aforesaid fact is correct in passing the impugned order showing no interference with the order of Labour court.
Analysis:
21. We have heard learned counsel for the parties, gone across the finding recorded by learned Single Judge in the -9- impugned order as also order passed by learned labour court in the award and the pleading available on record and the grounds agitated for filing the instant appeal.
22. This Court, before proceeding to examine the legality and propriety of the impugned order, needs to refer herein the undisputed facts for adjudication of lis:
23. The original respondent-workman, namely, R.B. Bhuiyan was appointed as Gas Helper in the year 1972 in the petitioners' company. While working as such, the workman absented himself on several occasion, as such a charge-sheet was served upon him for willful absence from duty for 35 days for remaining absence without sufficient cause and for negligence in duty. After submission of charge-sheet, the enquiry committee was constituted and it is stated that several opportunities were granted to the workman to plead his case before the enquiry committee in his defence but he failed to appear.
24. It is stated that later on although the workman appeared on 23.12.1993 but could not give proper defense to the charge, therefore, the charge leveled against the workman was found to be proved. Consequent thereupon the petitioner was dismissed from service of the company.
25. After dismissal from service, the workman raised an industrial dispute which was referred by the appropriate
- 10 -
government for adjudication under Section 10(1)(c) of the Industrial Disputes Act, 1937 on the following terms:
"Whether the termination of services of Sri R.B. Bhuiyan, Workman Staff No. 190041 BMP Coke-Oven and B.P.P. by the Management of M/s Bokaro Steel Plant, Bokaro Steel City of the charge of unauthorized absence is proper? If not, what relief the workman is entitled to?"
26. The learned labour Court, after hearing the parties had held that non-supply of enquiry report and non-issuance of the second show cause has caused prejudice to the workman concerned. Thereafter, both the parties were directed to adduce evidence on the issue and ultimately vide order and judgment dated 09.10.2004, the learned labour court passed the award in the said Reference Case No. 8 of 1999 answering the reference in favour of workman and directed the management to reinstate the workman in service with 50 % back wages.
27. The management aggrieved with the said award moved this Court by invoking writ jurisdiction of this Court conferred under Article 226 of the Constitution of India by filing writ petition being W.P. (L) No. 5556 of 2005, which was disposed of vide order dated 07.09.2016 and the learned writ Court did not interfere with the order of reinstatement, however, since the workman died in the year 2006 during
- 11 -
pendency of the writ petition, as such order of granting 50 % back wages was moulded to the effect that 50% back wages be awarded to his legal heirs, which is the subject matter of instant appeal.
28. Now coming to the judicial pronouncements of which the learned counsel for the parties has taken aid of and which has been referred by learned labour court in the award.
29. Much emphasis has been laid down by learned counsel for the respondents-workman (deceased) on the judgment rendered by Hon'ble Apex Court in the case of The workmen of M/s Firestone Tyre Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors. (supra) more particularly paragraph 13, 27, 29, 32 as also 41 A, for ready reference, the same are quoted as under:
"13. The above position has been completely changed by Section 11-A. It is now obligatory on an employer to hold a proper domestic enquiry in which all material evidence will have to be adduced. When a dispute is referred for adjudication and it is found that the domestic enquiry conducted by the management is defective or if it is found that no domestic enquiry at all had been conducted, the order of discharge or termination passed by the employer becomes, without anything more, unjustified and the Labour Tribunals have no option but to direct the reinstatement of the workman concerned, as his discharge or dismissal is illegal. Even in cases where a domestic enquiry has been held and finding of misconduct recorded, the Labour Tribunals have now full power and jurisdiction to reappraise
- 12 -
the evidence and to satisfy themselves whether the evidence justifies the finding of misconduct. Even if the enquiry proceedings are held to be proper and the finding of misconduct is also accepted, the Tribunal has now power to consider whether the punishment of dismissal or discharge was necessary for the type of misconduct of which the workman is found guilty. In such circumstances, the Tribunal can also give any other relief to the workman, including the imposing of a lesser punishment. In cases where an employer had not conducted any enquiry or when the enquiry conducted by him is held to be defective, the employer will not be given any opportunity to adduce evidence before the Labour Tribunal for justifying his action. Various decisions of this Court have emphasised that there is an obligation on the part of an employer to hold a proper enquiry before dismissing or discharging a workman. And it has also been stated that the enquiry should conform to certain well defined principles and that it should not be an empty formality. If the management, being fully aware of this position in law, does not conduct an enquiry or conducts a defective enquiry, the order passed by it is illegal and it cannot take advantage of such illegality or wrong committed by it and seek a further opportunity before the Tribunal of adducing evidence for the first time. Generally, the Standing Orders also provide for the conduct of an enquiry before imposing a punishment. The Standing Orders have been held to be statutory terms of conditions of service. If an employer does not conform to the provisions of the Standing Orders, he commits an illegality and an order passed, which is illegal, has only to be straightaway set aside by the Tribunal. Decisions of this Court, while recognising that an opportunity has to be given to an employer to adduce evidence before the Tribunal for the first time, have not given due importance to the effect of a breach of a statutory obligation committed by an employer in not conducting a proper and valid enquiry as per the Standing Orders. This anomaly has now been removed by the Legislature.
- 13 -
27. The right of an employer to lead evidence before the Tribunal to justify his action was again reiterated in Khardah Co. Ltd. v. Workmen [AIR 1964 SC 719 : (1964) 3 SCR 506 : (1963) 2 Lab LJ 452] as follows:
"It is well-settled that if the enquiry is held to be unfair, the employer can lead evidence before the Tribunal and justify his action, but in such a case, the question as to whether the dismissal of the employee is justified or not, would be open before the Tribunal, and the Tribunal will consider the merits of the dispute and come to its own conclusion without having any regard for the view taken by the management in dismissing the employee."
29. The rights of an employer to avail itself of an opportunity to satisfy the Tribunal by adducing evidence, when an enquiry held by it was found to be defective or when no enquiry at all has been held, have been stated in State Bank of India v. R.K. Jain [(1972) 1 SCR 755] as follows:
"It should be remembered that when an order of punishment by way of dismissal or termination of service is effected by the management, the issue that is referred is whether the management was justified in discharging and terminating the service of the workman concerned and whether the workman is entitled to any relief. In the present case, the actual issue that was referred for adjudication to the Industrial Tribunal has already been quoted in the earlier part of the judgment. There may be cases where an inquiry has been held preceding the order of termination or there may have been no inquiry at all. But the dispute that will be referred is not whether the domestic inquiry has been conducted properly or not by the management, but the larger question whether the order of termination, dismissal or the order imposing punishment on the workman concerned is justified. Under those circumstances it is the right of the workman to plead all infirmities in the domestic inquiry, if one has been held and also to attack the order on all grounds
- 14 -
available to him in law and on facts. Similarly the management has also a right to defend the action taken by it on the ground that a proper domestic inquiry has been held by it on the basis of which the order impugned has been passed. It is also open to the management to justify on facts that the order passed by it was proper. But the point to be noted is that the inquiry that is conducted by the Tribunal is a composite inquiry regarding the order which is under challenge. If the management defends its action solely on the basis that the domestic inquiry held by it is proper and valid and if the Tribunal holds against the management on that point, the management will fail. On the other hand, if the management relies not only on the validity of the domestic inquiry, but also adduce evidence before the Tribunal justifying its action, it is open to the Tribunal to accept the evidence adduced by the management and hold in its favour even if its finding is against the management regarding the validity of the domestic inquiry. It is essentially a matter for the management to decide about the stand that it proposes to take before the Tribunal. It may be emphasised, that it is the right of the management to sustain its order by adducing also independent evidence before the Tribunal. It is a right given to the management and it is for the management to avail itself of the said opportunity."
32. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and
- 15 -
principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee,
- 16 -
once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens [(1971) 1 SCC 742] within the judicial decision of a Labour Court or Tribunal."
41-A. Another change that has been effected by Section 11-A is the power conferred on a Tribunal to alter the punishment imposed by an employer. If the Tribunal comes to the conclusion that the misconduct is established, either by the domestic enquiry accepted by it or by the evidence adduced before it for the first time, the Tribunal originally had no power to interfere with the punishment imposed by the management. Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimisation. Under Section 11-A, though the Tribunal may hold that the misconduct is proved, nevertheless it may be of the opinion that the order of discharge or dismissal for the said misconduct is not
- 17 -
justified. In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by Section 11-A."
30. It is evident from the above judgment that even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
31. Herein, also in the facts of the case, the domestic enquiry has been found to be unfair, as such the learned tribunal relying upon the judgment rendered in the case of considered by relying upon the ratio laid down in the case of The workmen of M/s Firestone Tyre Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors. (supra) has directed both the parties to adduce evidence, as would be evident from such consideration having been given by learned labour court as under paragraph 17 onwards wherein while considering the plea of domestic enquiry said to be unfair both the parties were directed to adduce evidence. At paragraph 19 of the said award, the learned labour court in order to satisfy itself about
- 18 -
the legality and validity of the order have been given to provide opportunity which has been considered by relying upon the ratio laid down in the case of The workmen of M/s Firestone Tyre Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors. (supra). For ready reference paragraph 19 is referred herein below:
"19.Much argument has been advanced by the learned counsel of the workman that his client did not receive any chargesheet but in this context the learned counsel appearing on behalf of the management drawn the attention of this court towards statement of demand addressed to the Managing Director wherein there is no whisper about non service of chargesheet. Para 4, Sub-para (v) of the written statement of the workman also shows that he had received a notice wherein date venue and time of enquiry was fixed and when he went with his co-worker Sri Hiralal Rajwar he did not find any body there. In Ext. M-3 the date for enquiry was also fixed and since the enquiry has been held unfair and the management was given an opportunity to justify its action by the order of this court therefore, it is to be seen whether the action on the part of the management in dismissing the workman is justified or not. In this context, the learned counsel for the management relied a case law reported in 1993 Vol.-I ILLJ Page 28 SC ratio decided in the case of Firestone Tyre and Rubber Company wherein the Lordships of the Apex Court have been pleased to observe that even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order has to give an opportunity to the employer and employee to adduce evidence before it. It has futher been observed by the Lordships that it is open to the employer to adduce evidence for the first time justifying its action and it is open to the employee to adduce evidence contra.
- 19 -
Therefore, in view of the above position of law settled by the Hon‟ble Supreme Court it has to be seen whether the management‟s action is justified or not."
32. The evidence has been led and as would appear from paragraph 20 that the learned labour court has come to conclusive finding that the workman was absent unauthorizedly during the relevant period mentioned in the pay-slips and there is no evidence that he ever informed and took any leave from any competent authority, which is based upon the exhibits i.e. Exts M-31/79 to M/31/93, which are the pay-slips and the statement of presence and absence of the workman during the particular months as has been shown in the pay-slip of the following months. The paragraph 20 of the award is quoted as under:
"20.The specific charge against the workman is that he is in the habit of habitual unauthorized absence. The specific charge is that the workman was absent in duty unauthorizedly from 28.06.1993 till the issuance of the chargesheet dt. 10.07.1993 and during preceding also was absent for few days. Much argument has been advanced in this context that the attendance registered and leave records have not been produced in spite of the documents as called for by the workman. The learned counsel of the management submitted that the attendance register is not preserved beyond certain period but the pay slips and perusal of the same it will appear that on the relevant dates the workman was absent from duty. My attention was further drawn that pay slips have been marked as Exts. M-31/79 to M-31/93 and presence and absence of the workman during the particular month is shown is the payslips in the following months. The workman in para 7 of his deposition has
- 20 -
admitted before this court that in the pay slips the description of presence and absence in duty is given. He has futher admitted that the pay slips are prepared in computer and he never made any complain against pay slips issued to him. In such view of the fact it is clear that the workman was absent unauthorizedly during the relevant period mentioned in the pay slips and there is no evidence that he ever informed and took any leave from any competent authority.
33. It further appears that so far as the imputation against the workman that he used to remain absent unauthorizedly from duty without giving any information on several occasions, hence he is habitual to that, is concerned, it has been considered based upon the documents i.e., Exhibit M-
28, which is letter dated 03.01.1984 addressed to the workman by the Assistant Manager showing that he was absent unauthorizedly from duty since 12.12.1983; Ext. M-
27 i.e., letter dated 09.10.1987 addressed to the workman informing the workman to report to duty on or before 16.09.1987 since was absenting himself from duty unauthorizedly from 28.09.1987 and Ext. M-26 i.e., letter dated 19.05.1987 also addressed to the workman mentioning therein that he was absent unauthorizedly from 04.05.1987 and was asked to report by 26.05.1987. Exhibits M-25 and M-22 are the statement of allegations against the workman regarding his period of absence for remaining unauthorized absence from duty has been found to be substantiated. For
- 21 -
ready reference, paragraph 23 of the impugned award is quoted as under:
"23.Ext. M-28 is a letter dated 3.1.1984 addressed to the workman by the Assistant manager wherein it was informed that he was absent unauthorizedly from duty since 12.12.1983 and he was asked to report for duty within 7 days or to report to B.G.H. for treatment. Ext. M-27 is of dt. 9.10.1987 addressed to the workman wherein it has been informed to the workman wherein it is mentioned that he was absent unauthorizedly from 4.5.87 and was asked to report by 26.5.87 Exts. M-25 and M-22 are the statement of allegations against the workman regarding his period of absence for unauthorized from duty which shows that he was absent unauthorizedly for 47 days within the period of Dec. 1987 Jadn. and Feb. 1988 and 37 days within the period of April to June 1988. Exts. M-24 and M-23 are the chargesheet issued against the workman for remaining unauthorized absent. Similarly Ext. M-19 is of dt. 27.8.88 wherefrom it appears that the workman was absent unauthorizedly since 6.7.88 and was directed to report to duty by 6.8.88 Ext. M-20 shows that the workman was warned not to repeat such misconduct in future. Ext. M-18 further shows that after enquiry against the chargesheet dt. 14.7.1979 the basic pay of the workman was reduced to the minimum of the grade with immediate effect. Ext. M17 is the statement of R.B. Bhuieya-workman against the chargesheet dt. 14.7.79 written by him wherein he has admitted that in future he would not remain absent unauthorizedly without informing the management. From the above records it appears that workman was in the habit of unauthorised absent.
34. It is, thus, evident that the learned labour court has found the charges substantially proved, however, one of the arguments has been advanced on behalf of workman that due
- 22 -
to non-supply of enquiry report along with second show cause notice prejudice has been caused to the interest of the workman.
35. The workman in order to strengthen his argument has relied upon the judgment rendered by Hon'ble Apex Court in the case of Managing Director ECIL, Hydrabad Vs. B. Karunakar (supra). Therefore, the reference of said case needs to refer herein. The factual aspect of the Managing Director ECIL, Hydrabad Vs. B. Karunakar (supra) which was the consideration made by the Constitution Bench of Hon'ble Apex Court after having been referred for consideration of the judgment rendered in the case of Union of India Ors Vs. Mohd. Ramzan Khan [(1991) 1 SCC 588] has laid down the proposition in which circumstances, due to non-supply of enquiry report and non-issuance of second show cause notice the departmental proceeding will be vitiated. The relevant consideration has been made at paragraph 31 of the said judgment, which reads as under:
"31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply
- 23 -
of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back- wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of
- 24 -
furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law."
36. It is, thus, evident from the above ratio that either the case of Union of India Ors Vs. Mohd. Ramzan Khan (supra) or the Managing Director ECIL, Hydrabad Vs. B. Karunakar (supra) which was the subject matter of a departmental proceeding in which the effect of non-supply of enquiry report along with second show cause notice was the matter which was considered.
37. It is not in dispute that the said ratio of causing prejudice due to non-supply of enquiry report and second show cause will also be applicable even in the labour dispute but the law is well settled that the judgment is to be applied depending upon the factual aspect of each case, and there cannot be any universal application of the judgment rather each judgment is to be decided on the basis of fact of each case.
38. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Supreme Court in Dr. Subramanian Swamy vs. State of Tamil Nadu & Ors reported in (2014) 5 SCC 75 wherein it has been held as under:
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court
- 25 -
should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
39. Herein, it is not in dispute that the domestic enquiry was found to be unfair the reason of unfairness is that in course of domestic enquiry the management did not supply the copy of enquiry report and also did not issue second show cause notice and in absence thereof the order of dismissal was passed. The order of dismissal when carried before the adjudicator for the purpose of answering the reference under the provision of Section 10(1)(c) of the Industrial Dispute Act, 1947 wherein plea of non-supply of enquiry report was taken causing serious prejudice to the workman.
40. The learned labour court placing reliance upon the judgment rendered in the case of The workmen of M/s Firestone Tyre Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors. (supra), has provided opportunity to the parties to adduce evidence so as to come to the conclusion about the legality and propriety of the order of dismissal, as has been referred hereinabove. So far as the allegations are concerned the evidences have been adduced on behalf of both the parties.
41. The learned labour court has come to the conclusive finding about proving of the said charge meaning thereby whatever view has been taken for the purpose of coming to
- 26 -
the conclusion of the order of dismissal has been found to be proper by the learned labour court. Since it is admitted that the reason for domestic enquiry said to be unfair was due to non-supply of enquiry report and non-issuance of second show cause notice and for that reason as per the ratio laid down by Hon'ble Apex Court in the case of The workmen of M/s Firestone Tyre Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors. (supra), the evidence has been laid down before the adjudicator who happens to be quasi-judicial authority to act as adjudicator for answering the reference as to whether the termination of the services of the workman on the charge of unauthorized absence is proper or not, if not, what relief the workman is entitled to.
42. The judgment rendered in the case of Managing Director ECIL, Hydrabad Vs. B. Karunakar (supra), is altogether on different context where the order of punishment, if imposed in culmination of proceeding initiated under the conduct rule then in those circumstances, while showing the prejudice having been caused due to non-supply of enquiry report and non-issuance of second show cause notice the same can be interfered with by the court of law.
43. But herein, since the evidence has been allowed to be led by both the parties based upon the fact that if conclusive finding has been arrived at proving the charge of
- 27 -
unauthorized absence being the habitual one then there cannot be any question of causing prejudice since every record which was the basis of framing of charge i.e., different letters written by the management asking the petitioner to join after remaining unauthorized absence from duty, pay- slips showing absence from duty, as has been referred at paragraphs mentioned above of the award passed by the labour court and after full opportunity having been granted to both the parties, the learned labour court has come to the conclusive finding of proving the charge, then according to considered view of this court the judgment rendered in the case of Managing Director ECIL, Hydrabad Vs. B. Karunakar (supra) in the facts and circumstances of the present case will not be applicable and is of no aid to the workman.
44. This Court, after discussing the aforesaid fact along with the legal issue and coming to the award it is evident that the learned labour court has passed the award on mis-conception by putting reliance upon the judgment rendered in the case of Managing Director ECIL, Hydrabad Vs. B. Karunakar (supra) and as per the detailed reason referred herein above.
45. Further, the learned Single Judge has also not appreciated the aforesaid legal issue regarding the applicability of issue rendered in the case of Managing
- 28 -
Director ECIL, Hydrabad Vs. B. Karunakar (supra) reason being that if in the present facts and circumstances of the case if the judgment rendered in the case of Managing Director ECIL, Hydrabad Vs. B. Karunakar (supra), will be said to be relied upon then the question will be that what will happen to the judgment rendered in the case of The workmen of M/s Firestone Tyre Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors. (supra), since proper opportunity has already been given by the labour court in view of judgment rendered in the case of The workmen of M/s Firestone Tyre Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors. (supra). The labour court since has come to the conclusive finding of proving the charge then it was not open for the learned labour court to consider the issue of non-supply of enquiry report and non-issuance of second show cause notice upon the workmen in course of domestic enquiry for the purpose of coming to the conclusion that order of dismissal to be unjustified. Otherwise, if such finding will be said to be acceptable then for what purpose the parties were directed to adduce evidence since, the main reason for holding the domestic enquiry to be unfair was due to non-supply of enquiry report and non-issuance of second show cause notice.
- 29 -
46. This Court is conscious with the fact that the interference which is to be shown by High Court in exercise of power conferred under Article 226 of the Constitution of India is very least as per the judgment rendered by Hon'ble Apex Court in the case of Syed Yakoob Vrs. K.S. Radhakrishnan & Ors, [A.I.R. 1964 477 Supreme Court], wherein at paragraph no. 7 their Lordships have been pleased to held as under:-
"7.The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the
- 30 -
said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point 11 and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised."
47. In another judgment, the Hon'ble Apex Court in Sawarn Singh & Anr. Vrs. State of Punjab & Ors [(1976) 2 SCC 868] while discussing the power of writ under Article 226 of Constitution of India for issuance of writ of certiorari has been pleased to hold at paragraph nos.12 and 13 as under:
"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the High Court in writ proceedings under Article 226. It is well settled that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as
- 31 -
an appellate court. As was pointed out by this Court in Syed Yakoob case, "this limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be.
"13.In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
48. Likewise, the Hon'ble Apex Court in Pepsico India Holding Private Limited Vrs. Krishna Kant Pandey [(2015) 4 SCC 270] while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of interference with the finding recorded by the tribunal has been pleased to hold by placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram reported in (1986) 4 SCC 447 at paragraph 14 as under:-
"14.While discussing the power of the High Court under Articles 226 and 227 of the Constitution interfering with the facts recorded by the courts or the tribunal, this Court
- 32 -
in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] , held as under:
"17. In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta [(1975) 1 SCC 858 : AIR 1975 SC 1297] where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at AIR p. 1301 of the Report as follows:
„7. The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath [AIR 1954 SC 215] (AIR p. 217, para 14) that the "power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [AIR 1951 Cal 193] , to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors".
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bora v. Commr. of Hills Division [AIR 1958 SC 398] and it was pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case: (AIR p. 413, para 30)
30. ... It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or
- 33 -
quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority."
49. It is evident from the ratio laid down by the Hon'ble Apex court in the judgments as referred hereinabove that the scope of High Court sitting under Article 226 of the Constitution of India in exercise of power of judicial review on the finding of the Tribunal or inferior Court is very limited
50. It needs to refer herein that the learned Single Judge has also relied upon the judgment rendered in the case of Syed Yakoob Vrs. K.S. Radhakrishnan & Ors, (supra) and in that view of the matter the learned Single Judge has dismissed the writ petition showing no interference with the award passed by learned labour court but the learned Single Judge has not appreciated the fact that the power of judicial review is available but it is to be exercised with all circumspection which does not mean that power of judicial review is not to be exercised so far as adjudication of fact finding by the industrial adjudicator is concerned.
51. The Hon'ble Apex Court has held in the case of General Manager, Electrical Rengali Hydro Electric Project, Orissa and Others vs. Giridhari Sahu and Others
- 34 -
reported in 2019 SCC OnLine SC 1177 wherein the factual aspect was that the learned labour court has held the order of termination to be unjustified which has been upheld by the Orissa High Court also. However, it was questioned before the Hon'ble Supreme court on the ground that the very basis of coming to the conclusion while answering the reference holding the order of termination to be unjustified is not based upon the documentary evidence which were placed before the adjudicator. The Hon'ble Apex Court by relying upon the power of judicial review has reversed both the orders i.e., award and the order passed by high court.
52. This Court exercising the power of judicial review based upon the principle that if there is any erroneous consideration or the fact finding is perverse then certainly the high court is having its jurisdiction under Article 226 of the Constitution of India to interfere with the award is of the view that the impugned order passed by learned Single Judge as also the award passed by the learned labour court requires interference.
53. This Court taking into consideration the aforesaid law, as laid down by Hon'ble Apex Court in the case of Syed Yakoob Vrs. K.S. Radhakrishnan & Ors (supra); Sawarn Singh & Anr. Vrs. State of Punjab & Ors(supra); Pepsico India Holding Private Limited Vrs. Krishna Kant Pandey
- 35 -
(supra) and the General Manager, Electrical Rengali Hydro Electric Project, Orissa and Others vs. Giridhari Sahu and Others (supra) is of the view that the award needs to be interfered with.
54. Accordingly, the award dated 9th October, 2004 passed in Reference Case No. 8 of 1999 is quashed and set aside.
55. In the result, the order passed by learned Single Judge based upon the reason aforesaid also needs to be interfered with, accordingly, order dated 07.09.2016 passed in W.P.(L) No. 5556 of 2005 which is impugned in this intra-court appeal is also quashed and set aside.
56. In consequence thereof, the instant intra-court appeal stands allowed.
57. Accordingly, the writ petition being W.P.(L) No. 5556 of 2005 stands dismissed.
58. Pending Interlocutory Application stands disposed of.
59. The Member Secretary, JHALSA, is directed to reimburse the fee etc. of learned amicus as per law.
(Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Alankar/ A.F.R.
- 36 -