High Court
Case Details
WP(C) 3433/2006 BEFORE HON’BLE MR JUSTICE B.K.SHARMA JUDGMENT AND ORDER (ORAL) This writ petition is directed against the Award dated 6.11.2003 passed 1. by the learned Presiding Officer, Labour Court, Guwahati in Reference Case No. 2 2/1990. By the said Award, the reference has been answered in favour of the Mana gement and against the workman. The issue for determination as was referred to v ide Govt Notification dated 21.12.1990 was as follows :- (cid:28) 1. Whether the management of Kellyden Tea Estate, Nagaon were justified in te
Legal Reasoning
rminating the serv ices of Sri Etto Teli and Sri Jamboo Lather or not? 2. If not, whether Sri Etto Teli and Shri Jamboo Lahar are entitled to reinstat ement in their services with full back wages with effect from 18.3.89 till the d ate of reinstatement. (cid:29) 2. t-in-opposition). For a ready reference the charge sheet is reproduced below :- The workman was charge sheeted on 8.12.1988 (Annexure-1A to the affidavi (cid:28) To Etto, Daily Rated Worker, P.F. No. 4123, Misa Div ision, Kellyden Tea Estate On 6.12.88 at about 4-30 P.M. (G.T.) near section DJ 2 and DJ 1 while the wom en workers from section DJ 6 and the men workers from section SB 3 Ext. were preparing themselves for giving the last weighment of the structing the majo rity of the workers of section No. DJ 6 and SB 3 Ext. from discharging their normal duties of giving weighment of leaf plucked by them , thereby completel y disregarding and disobeying the reasonable and lawful orders of your super iors including the Actg Manager, Shri S. R. Kar, the Jamadar Babu, Shri J.K. Bor a, the Men Mohorer and A Bordoloi, the women mohorer. You further created a riotous situation in the weighment area by shouting and ab using the Management as well as your co-workers. When Shri Sobil, P.F. No. 1696, tried to pacify and give weighment you shouted and abused him saying (cid:28) you g et back in the line at once, unless our weighment is taken nobody else will go f or weighment, (cid:28) or words to that effect. You then threatened the other workers f orcing them not to give weighment thereby not allowing the normal work to be c arried out, you refused to listen to the orders of the Jamadar Babu, Shri S.R. K ar and also his reasoning. These amount to disobedience of a reasonable and lawful order of the Management and your superiors, riotous conduct, willful insubordination, and in inciting ot hers to commit misconduct. The above if proved are gross misconducts as per Clause 10(a) (1, 10(a)(7) and 1 0(a)(8) of the Standing Orders in force on the Estate. I therefore call upon you to explain by 15.12.88 at 8.00 A.M. (G.T.) why discipl inary action should not be taken against you. In the event of your not submitting any explanation at the appointed time and da te it will be presumed that you have not explanation to offer and that you accep ted the charges and the matter can be disposed in a manner deemed appropriate. As the charges leveled against you are of a serious nature, you are hereby suspe nded from your duties with immediate effect until the conclusion of the enquiry. During the period of suspension you will be entitled to a subsistence allowance as provided for in Clause 9(e) of Standing Orders for tea estate in Assam. You s hall also be entitled to continue to draw rations at concessional rates. ‘ Sd/ ACTG MANAGER KELLYDEN TEA ESTATE 14.2.89 (cid:28) 3. Responding to the charge sheet the workman vide his explanation dated 13 .12.1998 denied the charge and prayed for withdrawal of the charge sheet. The re ply submitted by the workman is also reproduced below :- (cid:28) The Acting Manager Kellyden Tea Estate Sub: Explanation Sir, In response to your letter ( your Ref. 132/88 dtd 8.12.88) I would like to state as follows:- That the account of the incident of 6.12.88 as mentioned in your letter is n ot true to the facts. Neither myself nor any other worker obstructied the workers f rom discharging their normalo duties and disregarded and disobeyed the reasonabl e and lawful orders of superiors. In fact you yourself created a situation by re fusing to take the case weighment of those workers including male and female, wh o took such at home during the rest period after the weighment at 12 A.M. (G.T. ) of that day. They whole of the workers of the section protested again this act ion on your part and left the place of weighment on that day without giving the last weighment. You cannot deny this fact. This action on your part was motivate d and vengeful and has its origin in your attempt to unlawfully deny the workers of availing the mid day rest and the liberty to take their lunch at the place of their choice without hampering their duty and maintaining punctuality. Previ ously also you have deducted half days wages of workmen Lame Guard and six othe rs on 13.6.88 on the pretext of leaving their duties before time as those wo rker were debarred by you from joining their duties after mid day rest and lunc h at home though they reported to duty on time. We have raised this matter befor e the Assistant Labour Commission, Nagaon. Thus this is an industrial dispute be tween y our management and the workmen on the issue of curtailment of mid day re st and the liberty to take lunch at their choice without hampering duties and re porting to duties in time. Instead of trying to settle this dispute amicably you are tying to take revenge upon those workmen who are leading the workers in the ir struggle for protecting their sights. This is the real reason for your action on 6.12.88 and you were completely responsible for the situation on that day. Thus there was no question of creating riotous situation shouting and abusing th e management and co-worker Sri Sobil threating other workers forcing them not to give weighment not allowing normal work to be carried and refusing to listen to orders on my part. In fact there was no cause of action from my side to do ther e things as the whole of the workers of the section. Protested against your acti on and left without giving weighment as a mark of protest. All these charges aga inst me are got up. Hence I totally reject the charges of disobedience of reasonable and lawful orde r of management and my superiors, riotous condance, willful insubordination and inciting others to commit misconduct. All there charges are got up motivated and vengeful and brought against me with a view to victimize me. The charge sheet a nd the suspension order against me are unlawful and unjustified. Therefore, I request you to kindly withdraw this charge sheet and the suspension order against me and to come forward with an open mind to amicably settle the dispute regarding mid day rest and lunch. Yours faithfully Sd/- (Etto Telly) 4. In due course a domestic enquiry was conducted in which the workman was found to be guilty of the misconduct attributed to him by the above quoted charg e sheet dated 8.12.1988. Pursuant thereto he was dismissed from service on 17.3. 1989. A dispute having been raised relating to the same, the Govt vide Notificat ion dated 21.12.1990 referred the same for adjudication to the learned Labour Co urt, Assam at Guwahati. The reference was finally decided by the impugned Award dated 6.11.2003 and the reference having been answered against the workman the U nion representing him has filed the instant writ petition assailing the said Aw ard. I have heard Mr S Chakraborty, learned counsel appearing for the petitio 5. ner. I have also heard Mr SN Sarma, learned senior counsel assisted by Mr A Zahi d, learned counsel representing the Management. I have also perused the entire m aterials on record including the records received from the learned Labour Court. Mr Chakraborty, learned counsel for the petitioner has submitted that it 6. is a clear case of victimization of the workman and that the whole basis of the charge leveled against the workman being founded on malafide exercise of power and extraneous consideration, the charge sheet itself is not sustainable in law. He further submits that it is a case of victimization for lawful demands made by the workman. According to him, the learned Labour Court has committed manifes t error of law in appreciating the evidence and answering the reference on that basis. He submits that there being no evidence at all to sustain the misconduct attributed to the workman, the finding recorded by the learned Labour Court is perverse and liable to be interfered with. 7. Countering the above argument Mr Sarma, learned senior counsel for the M anagement submits that the finding arrived at by the learned Labour Court cannot be interfered with exercising writ jurisdiction. According to him, there being evidence against the workman towards sustaining the charge leveled against him, the learned Labour Court has rightly passed the Award answering the reference in favour of the Management. Referring to the particular misconduct attributed to the workman, Mr Sarma has submitted that having regard to the charge leveled ag ainst the workman, the penalty of dismissal from service was proportionate to th e gravity of the misconduct and accordingly not liable to be interfered with. In support of the submissions he has placed reliance on four decisions which are r eported in (2005) 3 SCC 134 (Mahindra and Mahindra Ltd vs N.B. Narawade); (2006) 1 SCC 430 (Hombe Gowda Educational Trust and another vs State of Karnataka and others) ; (2007) 2 SCC 433 (J.K. Synthetics Ltd v s K.P. Agrawal and another) a nd the unreported judgment of the Division Bench in WA No. 138/2013 ( Ashok Bhat tacharjee vs The State of Assam and ors.). Before appreciating the aforesaid submissions made by the learned counse 8. l for the parties in reference to the charge that was leveled against the workma n and the evidence on record and also the Award passed by the learned Labour Cou rt, the decisions on which Mr Sarma, learned senior counsel representing the res pondent has placed reliance may be briefly discussed. 9. In Mahindra and Mahindra Ltd (supra) when it was found that the language employed by the workman was filthy and it cannot be tolerated by any civilized society and that too such language was applied not once, but twice in presence o f the subordinates of the superior authority, it was held by the Apex Court that no lesser punishment was called for other than the dismissal from service. 10. In Hombe Gowda Educational Trust (supra), the Apex Court catching back t he trend of the view points in labour matters held that the learned Labour Cour t should not normally interfere with the quantum of punishment imposed by the e mployer unless an appropriate case is made out therefor. 11. Both the aforesaid decisions are basically on the quantum of punishment. Needless to say that in a proven misconduct and having regard to the gravity of the same it is for the employer to decide as to what punishment would meet the ends of justice. It is not for the Writ Court to sit on appeal over the discreti on of the employer to award a particular punishment having regard to the gravity of the offence. Unless it is a case of disproportionate punishment to the gravi ty of misconduct, the Writ Court normally would not interfere with the punishmen t imposed by the employer. The decision in J.K. Synthetics Ltd (supra) and the unreported judgment 12. in Ashok Bhattacharjee (supra) have been placed reliance to argue that even if this Court is inclined to interfere with the impugned Award and to direct reinst atement of the workman, he will not be entitled to any back wages in the given facts and circumstances. It will be pertinent to mention here that during the p endency of the proceeding the workman has attained the age of superannuation in 2009. It is the submission of Mr Sarma, the learned senior counsel for the Manag ement that even if the impugned Award is set aside, there is no question of any reinstatement in service of the workman and payment of back wages to him. 13. As to what was the charge against the workman and his reply thereto has been noticed above. The learned Labour Court by its impugned Award, while discu ssing the evidence adduced by the Management and workman, has held as follows : - (cid:28) From the evidence on record, it is apparent that though the workers denied the incident, it is crystal clear from the evidence of Joykanta ora and M.W.2 Sisir Ranjan Kar that the workmen Etto Telly and Jamboo Lohar went home after the m id-day weighment without taking permission from the garden authority and ever af ter order of the management, they worked for 2nd half and demanded that weighmen t of tea leaves plucked by them must be taken first and they quarreled with the manager and threw tea leaves plucked by them on the ground. Other labourers als o threw the tea leaves plucked by them. It is clear that they defied the manager and took law in to their own hands. This is a misconduct committed by these two workmen-Etto Telli and Jamboo Lahor. (cid:28) 14. Before recording the aforesaid finding the learned Labour Court has refe rred to the evidence in paragraphs -27, 28 and 29. Thereafter without analyzing the same has simply recorded the finding in the above quoted paragraph-30 of th e Award that although the workman denied the incident but from the evidence of M W-1 and MW-2, it is established that the workman had gone home after the mid day weighment without taking permission from the garden authority and even after t he order of the Management, they worked for the 2nd half and that they demanded that weighment of tea leaves plucked by them should be taken first and they quar reled with the Manager and threw the tea leaves plucked by them on the ground. B efore arriving at such a finding the learned Labour Court simply referred to the evidence adduced by the Management and the workman but did not analyze the same to arrive at a finding. 15. Even if we go by the aforesaid finding recorded by the learned Labour Co urt, and test the same in the touchstone of the charge that was leveled against the workman, it will be seen that there is no finding as to the establishing the charge leveled against the workman. In the charge sheet it was alleged that the workman had completely disregarded and disobeyed the reasonable and lawful orde rs of the superiors by obstructing the majority of the workers from discharging their normal duties. It was also alleged that the workman had shouted at one Smt i. Sankhary and that he also shouted at the Acting Manager with words (cid:28)I will sh out if I have to and I will say what I want to say (cid:29). The said allegation has not even been obliquely discussed in the aforesaid finding recorded by the learned Labour Court. In the said finding what has been recorded is that the workmen wen t home after the weighment without taking permission from the garden authority a nd even after order of the Management, they worked in the 2nd half and also dema nded for taking weighment of tea leaves plucked by them which was not the charge . 16. The reference has been answered in favour of the Management with the afo resaid finding. The said finding is totally misplaced in so far as the charge th at was leveled against the workman is concerned. There is no whisper at all in t he charge sheet that the workman had left the working place during tiffin hours without taking permission from the authority. There is no finding in the impugne d Award regarding creating any obstruction and or riotous situation and also dis regarding and disobeying the reasonable and lawful orders of the superior author ity. 17. Independent of the above, I have perused the evidence on record. MW-3 in his deposition categorically stated that he did not have any personal knowledge about the alleged occurrence. The learned Labour Court has also not referred to the said evidence and has referred to the evidence of MW-1 and MW-2. On perusal of the evidence adduced by the DWs, it is found that they completely denied the incident and any misconduct on their part. DW-1 in his evidence categorically s tated that while all other workers were paid their salary for the particular day , he and the other workman involved in this proceeding was not paid the salary. Thus there was pay cut for them. It is in the evidence that altogether 27 worker s had gone to their respective quarters during tiffin hours on the particular da y. As per the evidence of MW-1 they went home/quarters without any permission. H owever, as deposed by him in his evidence, no action was taken against the said labourers. It was only the workman in question, who was the Unit Secretary of th e Trade Union, was taken up for domestic enquiry along with the other workmen. The MWs in their deposition have stated that some workmen including the 18. workman in question had gone to their respective quarters during tiffin hours wi thout any permission from the superior authority. It is the definite case of the workman that as per prevalent practice and procedure the workmen were entitled to go home/quarters during tiffin hours. However, on the particular day when the y returned to the working place from quarters they were obstructed from performi ng their duties and eventually they were also not paid their salary. However, as noted above, it is only the two workmen whose salary for the day was cut leavin g aside the other 27 workers who also had gone to their respective quarters with out permission. 19. It is in the above context, Mr Chakraborty, learned counsel for the work man has submitted that it is a clear case of victimization because of the Union activity of the particular workman. 20. The 5th Schedule of the Industrial Disputes Act, 1949 deals with unfair labour practice both on the part of the employers and Trade Unions. As per the s aid Schedule it will be an unfair labour practice to discharge or dismiss a wo rkman (a) by way of victimization; (b) not in good faith, but in the colorable e xercise of the employer’s rights; (c) by falsely implicating a workman in a crim inal case on false evidence or on concocted evidence; (d) for patently false rea sons; (e) on untrue or trumped up allegations of absence without leave; (f) in u tter disregard of the principles of natural justice in the conduct of domestic e nquiry or with undue haste; (g) for misconduct of a minor technical character, w ithout having any regard to the nature of the particular misconduct or the past record or service of the workman, thereby leading to a disproportionate punishme nt. 21. Above being the position, I have no hesitation to hold that the impugned Award is not based on evidence and thus the findings arrived at are perverse an d not sustainable in law. Consequently, the said Award is set aside and quashed. Be it stated her that the learned Labour Court had already held the dome 22. stic enquiry to be not sustainable in law. This now leads us to the question as to the entitlement or otherwise of the back wages by the concerned workman. It i s on record that the workman continued to fight his case right from the stage of leveling the charge vide charge sheet dated 8.12.1988. Pursuant to the domestic enquiry his service was dispensed with by dismissing him from service w.e.f. 17 .3.1989. Thereafter the Union raised the dispute in reference to which the Govt of Assam in the Labour Department by its Notification dated 21.12.1990 referred the dispute to the learned Labour Court. Since then it was long 13 years to answ er the reference. Thereafter being aggrieved by the Award the workman approached this Court by filing the instant writ petition. If the workman has already att ained the age of superannuation, there is no question of his reinstatement in se rvice. However, having regard to the facts and circumstances involved in this ca se and also in view of my above finding regarding victimization of the workman, I am of the considered opinion that he will be entitled to get 50% of the back w
Decision
ages with all consequential service benefits deeming him to be in service all th rough out till his normal retirement at the age of superannuation. The Managemen t is directed to pass the consequential order as expeditiously as possible, pref erably within 31st August, 2013. 23. Writ petition is allowed to the extent indicated above by setting aside and quashing the impugned Award dated 6.11.2003 passed in Reference Case No. 22/ 1990 and also the termination of the workman w.e.f. 17.3.1989. However, there sh all be no order as to costs. 24. dgment and order. Let the LCR be sent down to the Court below along with a copy of this ju