High Court
Case Details
WP(C) 4980/2005 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) This writ petition is directed against the award dated 11.1.2002 passed by the learned Labour Court, Dibrugarh in Reference Case No. 26/2000, by which t he issues raised vide Govt. notification dated 14.12.2000 have been answered aga inst the workmen. Being aggrieved by the said award, which was exparte, the conc erned workmen had filed an application registered as Misc. Case No. 3/2003 on 1. 1.2003 for setting aside the said exparte award. However, the said application w as also dismissed by order dated 2.6.2003. Being aggrieved, the petitioners have filed the instant writ petition. The issues which were referred for adjudication are as follows :- Whether the management of Naharhabi Tea Estate, Kukwa, P.O. Lukwa, dist. 2. (cid:28)1) - Sivsagar were justified in dismissing the services of Sarvashree (i) Jiten Bhu miz, (2) Sonia Bowri, (3) Bipin Kumar, (4) Devanti Dusad, (5) Kecha bati Kumar, (6) D.K. Ghatowar, (7) Pradip Bhuyan, (8) Shyam Mirdha and (9) Sulachan Kmarmaka r with effect from 31.12.99 ? 2) or any other relief in lieu thereof ? (cid:29) If not, are the workers entitled to re-instatement with full back wages 3. Admittedly, neither in the domestic enquiry nor in the proceeding before the learned Labour Court, the workmen had participated. While in the domestic e nquiry, the concerned workmen did not at all participate but in the proceeding b efore the learned Labour Court, while they initially appeared but later on there was no representation on their behalf. Situated thus, both the proceedings i.e. the domestic enquiry proceeding and the Labour Court proceeding proceeded expar te with the exparte final orders.
Legal Reasoning
I have heard Mr. G.P. Bhowmik, learned counsel for the workmen as well a 4. s Mr. S. N. Sarma, learned senior counsel assisted by Mr. S. Choudhury, learned counsel for the respondent management (respondent No.1). Referring to the stand in the writ petition that the workmen were not pr 5. ovided with the adequate opportunity of being heard, Mr. Bhowmik, learned counse l has submitted that since the charge sheet was in English version, the concerne d workmen ought to have been provided with Assamese version of the same, more pa rticularly, when they had prayed for the same. In this connection, he has referr ed to the purported applications annexed to the reply affidavit, by which some o f the workmen had prayed for Assamese version of the charge sheet. However, on p erusal of the said applications, names of only two petitioners are discernible. Moreover, on perusal of the records, it appears that in the domestic enquiry, th e petitioner No. 8 declined to accept the notice. 6. According to Mr. Bhowmik, learned counsel for the petitioners, since the workmen were not furnished with Assamese version of the charge sheet, they cou ld not participate in the enquiry proceeding. As regards non-appearance of the w orkmen in the proceeding before the learned Labour Court, he submits that during the course of the proceeding the Secretary of the Union expired on 17.12.2001 a nd the workmen were not aware of the date and particulars of the reference. Cons equently, they could not take any steps in the proceeding before the learned Lab our Court. According to Mr. Bhowmik, in such circumstances, both the impugned or ders i.e. the award and the order declining to set aside the exparte order, are required to be interfered with. Countering the above arguments, Mr. S.N. Sarma, learned senior counsel r 7. epresenting the respondent No.1, submits that the aforesaid plea of the workmen is not at all tenable in law. He submits that apart from the fact that out of th e 9 workmen, only 2 had signed the purported applications praying for Assamese v ersion of the charge sheet, the said plea is also not sustainable in law. He sub mits that the charge sheet having been issued on 27.7.99 and the applications pu rportedly submitted by the concerned workmen being dated 21.9.99 and 6.11.99, ev en otherwise also, the prayer made in the said two applications could not have b een acceded to by the Inquiry Officer as in the mean time the enquiry had commen ced. Moreover, the same did not preclude the workmen from participation in the e nquiry. 8. Mr. Sarma, learned counsel for the respondent No.1 further submits that there is no question of setting aside the order dated 2.6.2003 passed in MC 3/20 03 declining to set aside the exparte award on the basis of the reasons stated t herein. He further submits that the said application having been filed on 1.1.20 03, there was delay of more than a year and thus was not maintainable. He submit s that although, there is no statutory provision for entertaining an application seeking setting aside of the exparte award but in view of the law laid down by the Apex Court, such application although, entertainable but must be filed withi n 30 days. In this connection, he has referred to the decision of the Apex Court reported in (2005) 9 SCC 335 (R. Sulochana Devi Vs. D. M. Sujatha and others). 9. Mr. Sarma, learned senior counsel appearing for the management (responde nt No.1) further submits that going by the seriousness of the misconduct attribu ted to the workmen, which was also established in the domestic enquiry, this Cou rt exercising its power of judicial review under Article 226 of the Constitution of India will not sit on appeal over the findings recorded by the Inquiry Offic er in the domestic enquiry and so also by the learned Presiding Officer, Labour Court, Dibrugarh. 10. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and have also gone through the entire materials on record including the LCR. 11. The charge against the workmen was that of being violence in the factory premises and killing the Gate Chowkidar by lethal weapons. For a ready referenc e, the charge against the workmen is reproduced below :- (cid:28)It has been allegedly reported against you that on 10.7.99 around 9 A.M. you al ongwith others gathered outside the factory main gate with lethal weapon and sho uting ’Kat Dega, Mar Dega, Paisa Lao (cid:29) and injured the gate chowkidar by lethal w eapon on head who was trying to check your violent intrusion and despite lot of persuation and reasoning by executive, union people and security people, you bro ke open the gate and C.I. Sheet protector of sides and rushed to main office pel ting bricks, stones and ransacking window panes and window of Manager and garden office, even in front of office premises you were asked to come to your senses but to no avail. The Police Officer who reached to the office failed to prevent you from vandalizing the Manager’s Jeep, Window panes, window, doors, grills etc . and in front of executive staff you insisted (cid:28)Bahar Ao, Tukra Tukra Karenga, K isiko nahin Chorenge (cid:29) and again at this Shri T. Borgohain, Asstt. Manager got a heavy stone hit on his head hurled by some of you and he dropped on the floor bl eeding profusely, even then you did not came to your senses and due to this riot ous conduct three causalities occurred and Garden was put under lockout, the pro perty was damaged and workers, staff had to incur financial losses and had to su ffer mental and physical stress and trauma. In view of above tragic incident and your alleged involvement amounts to gross m isconducts where you have violated Clause No. 14(1), (7), (8) and (11) of the Co mpany’s Standing Orders. You are hereby given an opportunity to submit your written explanation within th ree days time as to why strict disciplinary action should not be taken against y ou as per the aforesaid section of the Company’s Standing Orders. Should you fail to submit your written explanation within stipulated time, it wi ll be presumed that you have no explanation to offer in your defence and the Com pany will take further action on the matter. Since the charges levelled against you are of very serious in nature which, if p roved, would warrant strict disciplinary action, hence you are hereby suspended from your work with immediately effect (27.7.00) pending enquiry and final decis ion. (cid:29) As to what is the reason for not responding to the enquiry proceeding ha 12. s been noted above. Apart from the fact that it is not that all the workmen had pleaded for furnishing the Assamese version of the charge sheet, some of the wor kmen did not even ask for the same and one workman even declined to accept the n otice. Apart from the said position, even if it is assumed that all the workmen, had in fact, prayed for furnishing the Assamese version of the charge sheet and the same was not acceded to, that by itself cannot be a ground for non-particip ation in the domestic enquiry. As pointed out above, the charge sheet is dated 2 6.7.99 and the applications made by the workmen are dated 21.9.99 and 6.11.99. O n the other hand, they were directed to furnish their written explanation within the stipulated period of time as indicated in the charge sheet much before the said applications. Thus, there was no immediate response of the workmen to the c harge levelled against them. It was only after expiry of 2/4 months, the workmen had allegedly prayed for furnishing the Assamese version of the charge sheet. 13. It is not a case of non-furnishing of charge sheet to the workmen. The w orkmen had contended that they should have been furnished with the Assamese vers ion of the charge sheet. It was not the case of the workmen that there was nothi ng in the garden area. Moreover, the atmosphere of the garden area was surcharge d with tension after the killing of the persons. Having regard to the accusation made against the workmen, the charge was known to them and accordingly they oug ht to have participated in the domestic enquiry to prove their innocence. They h aving failed to do so, they are now precluded from raising grievance against the exparte proceedings only on the ground of non-furnishing of the translated copy (Assamese) of the charge sheet (English). They could have also easily prayed fo r the same during the enquiry proceeding. 14. In the domestic enquiry, the Inquiry Officer examined the evidence avail able on record and thereafter came to the conclusion that the charge levelled ag ainst the workmen stood established in the enquiry. Accordingly, the management after observing the due formalities dismissed the workmen from service, making a grievance against which they had raised the Industrial Dispute in response to w hich the Govt. had referred the aforesaid two issues for adjudication by the lea rned Labour Court. 15. The learned Labour Court by its impugned award dated 11.1.2002 has held that the workmen being involved in serious crime leading to killing of innocent people, the management was within its competence and jurisdiction to hold the do mestic enquiry. It has also been held that having regard to the nature of the mi sconduct attributed and proved against the workmen, the punishment imposed was n ot alterable under Section 11(a) of the Industrial Disputes Act. 16. In the award, the learned Labour Court has discussed in detail the entir e evidence on record and thereafter recorded its own findings while declining to interfere with the penalty of dismissal from service, imposed on the workmen. I see no reason to interfere with the said award. As noted above, the impugned award had to be passed exparte, inasmuch as 17. , after initial participation in the proceeding thereof. There was no representa tion on behalf of the workmen. In the application as was submitted on 1.1.2003 s eeking setting aside of the exparte award, it was contended that the Secretary o f the Union expired on 17.12.2001 and the workmen were not aware of the date and particulars of the reference and as such, they could not take any steps in the matter. However, there is absolutely no explanation as to what prevented them fr om making the application within the prescribed time limit of one month instead of waiting for more than one year. 18. In R. Sulochana Devi (Supra), it has been held by the Apex Court in refe rence to its earlier decision reported in (1980) Supp SCC 420 (Grindlays Bank Lt d. Vs. Central Govt. Industrial Tribunal), that an application for setting aside an exparte award must be filed before expiry of 30 days from the date of the aw ard. In the instant case, after passing of the award, the workmen sat over the m atter well over one year and thereafter filed the application. On that score alo ne, the application was not maintainable. However, the learned Labour Court ente rtained the same by its reasoned order rejecting the said application, the same being devoid of any merit. 19. Mr. S. N. Sarma, learned counsel for respondent No.1 has also placed rel iance on the order dated 3.4.2013 passed by this Court in WP(C) No. 5050/2005 ( Usha Bhumij & Ors Vs. Management of Nahahabi Tea Estate), in which under somewha t similar circumstances, the award passed by the learned Labour Court was not in terfered with. 20. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly it is dismissed leaving the parties to bear their costs. The Registry is directed to send down the case records along with the copy of this judgement and order.