High Court
Case Details
WP(C) 2255/2004 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) This writ petition is directed against the Annexure-N order dated 22.8.2 003, by which the learned presiding officer, Industrial Tribunal, Silchar, decli ned to grant approval to the order of removal passed against the concerned workm an pursuant to a domestic enquiry. Such approval was required to be obtained in view of the provisions contained in Section 33(2)(b) of the Industrial Disputes Act, 1947. At the time of seeking the approval, there was another reference pend ing by and between the parties, which was registered and numbered as Reference C ase No. 9/95 and 9/96. Be it stated here that as per the requirement of Section 33(2)(b) while removing the workman from service pursuant to the departmental en quiry, he was offered one month’s wages. 2. In the domestic enquiry which was initiated by memorandum of charge shee t dated 13.1.98, the following was the charge relating to various unauthorised a bsence from duties for 104‰ days on 41 different occasions. (cid:28)STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SHRI RANJIT BHOWMIK, Tech (Fitter )-III, Code No. 1466 of Paper Machine (Mech). It is alleged that Shri Ranjit Bhowmik is a habitual absentee. During the period from 1.1.97 to 15.12.97 he remained absent for 104 ‰ days on 41 different occas ions as per details given below :- Month January’97 Period No. of days 3/1, 6/1, 13/1, 16/1, 20/1 to 21/1, 25/1 to 29/1, 31/1, ‰(7, 11, No, of occasions 15, 17, 18, 24/1) 15 12 1 /2 to 5/2, 10/2 to 11/2, 13/2 to 28/2, ‰(8/2) 23 ‰ 4 1/3 to 3/3, 5/3 to 6/3, 10/3 to 13/3, 16/3 to 17/3, 1 / 2(14, 15 6 2/4, 15/4 to 17/4, 23/4 to 24/4, 1 / 2(7, 21, 30/4) 7 ‰ Feb’97 March’97 , 11/3) 12 ‰ April’97 6 Sept’97 8/9 to 11/9, 17/9 to 20/9 Oct’97 Nov’97 20/10, 25/10, 1 / 2(18, 21, 24/10) 6/11, 8/11, 13/11 to 14/11, 16/11 to 30/11, ‰ (3/11) 5 19 ‰ 5 8 2 3 ‰ Dec’97 1/12 to 15.12.97 Total 104 ‰ days 15 41 occasions 1 Clause 28(10) of Standing Orders is reproduced below : (cid:28)Habitual late attendance and or habitual absence from duty without leave or wit hout sufficient cause. (cid:29) Sd/- Illegible Dy. General Manager (Engg.) (cid:29) By Annexure-B order dated 11.2.98, an Inquiry Officer was appointed to h 3. old the enquiry in respect of the above charge against the workman. The said ord er was passed noticing the fact that the workman did not submit his written stat ement of defence. In due course, enquiry was conducted and as per the findings r ecorded by the Enquiry Officer (Annexure-C), the charge against the petitioner s tood established. Thereafter, the petitioner was furnished with the copy of the enquiry report to respond to the same by submitting written reply, which he did after obtaining further extension of time. For a ready reference, the response o f the petitioner vide Annexure-G letter dated 18.5.98 (relevant portion) is repr oduced below :- (cid:28)That Sir, I was suffering from the acute Bronchial problem and acute gastric ul cer which your honour Sir, I explained before the enquiry board and assured them for production of the medical certificate but due to misfortune the charge shee t has been served upon me and I am submitting herewith a medical certificate for your kind consideration. That your good self, I orally off and on informed the matter of my service illne ss to the authority concern. That I have joined the service after getting medical fitness certificate, but du e to my misfortune above mentioned diseases has arisen in course of my employmen t which may be taken into special consideration. That I hope that my present physical condition is upto the mark and I will not a bstain from my official duties. (cid:29) 4. After the aforesaid development, the disciplinary authority by its Annex ure-H order dated 10.2.99 imposed the penalty of removal from service by offerin g one month wages of Rs. 5,575/- vide Cheque No. 0031675 dated 10.2.99. 5. In view of the proceedings pending before the learned Presiding Officer, Industrial Tribunal, referred to above, the management filed an application und er Section 33 (2)(b) of the Act praying for approval of the order of removal. Ho wever, the learned Tribunal by its order dated 23.8.2001 declined to grant the a pproval interfering into the merit of the case even to the extent of holding tha t unauthorised absence of the petitioner was not a serious crime, so as to remov e him from service. 6. The aforesaid order was set aside by this Court on 7.3.2003 (Annexure-M) in WP(C) No. 1077/2003 and the matter was remanded back to the learned Tribunal for fresh disposal in accordance with law. After such remand, the learned Tribunal has passed the impugned Annexure 7. -N order dated 22.8.2003 once again declining to grant the approval prayed for b y the management. The order has been passed declining to grant approval on the f ollowing grounds :- The Inquiry Officer who conducted the enquiry was being subordinate to t (i) he disciplinary authority, ought not have been appointed as such to conduct the enquiry. (ii) The workman was not given reasonable opportunity to defend his case with the assistance of fellow workman. (iii) Contrary to the stand of the management, the workman had submitted his r eply to the charge sheet but in the enquiry it was held that the workman did not submit any reply. (iv) as to why he had remained absent for 104 ‰ days on 41 occasions. There was failure on the part of the Inquiry Officer to ask the workman
Legal Reasoning
8. I have heard Ms. M. Hazarika, learned senior counsel assisted by Ms. A. Ajitsaria, learned counsel for the petitioner. I have also heard Ms. P. Chakrabo rty, learned counsel representing the workman (respondent no. 2). While Ms. Haza rika, learned counsel for the petitioner submits that on the face of it the find ings recorded by the learned Tribunal in the impugned order are beyond the scope of Section 33(2)(b) of the Act, Ms. P. Chakraborty, learned counsel for the wor kman submits that the learned Tribunal was to see as to whether the order of rem oval was sustainable in law or not and accordingly it had to scrutinize the evid ence on record to arrive at the particular finding. 9. I have given my anxious consideration to the submission made by the lear ned counsel for the parties and have also perused the entire materials on record . My findings and conclusions are as follows. 10. As per Clause 30 of the Standing Order which describes the procedure for imposition of major penalty, the departmental enquiry if held by an Officer nom inated by the management, should be an officer other than the officer who has ma de the allegation or is directly subordinate to him. In the impugned order, the learned Tribunal has simply held that the Inquiry Officer being an Executive (P& A) was directly subordinate to the appointing authority. The requirement of Clau se 30 is that the enquiry is required to be conducted by an Officer other than t he officer who has made the allegation or is directly subordinate to him. There is no mention in the said Standing Order that the Inquiry Officer cannot be subo rdinate to the appointing authority. There is also no evidence to show that the particular Inquiry Officer was directly subordinate to the disciplinary authorit y. That apart, if such a rigid interpretation is given, no officer can be a ppointed by the management to make an enquiry, which may even be applicable to t he Defence Assistant assisting the workman. 11. As regards the plea that the workman had submitted his reply to the char ge sheet vide Ext. A produced during the course of hearing before the learned Tr ibunal, the records of the enquiry do not disclose any such reply. That apart in the domestic enquiry proceeding, the petitioner categorically admitted that he did not submit any reply to the charge sheet. As regards the charge of unauthori sed absence for 104 ‰ days on 41 occasions during the period from 1.1.97 to 15.1 2.97, the workman categorically admitted the same. However, he assured that in f uture he would not resort to such absenteeism. 12. Even in the proceeding before the Tribunal, the workman in his depositio n admitted that it was only after going on leave he used to apply for leave. In the cross examination, the workman admitted that in his first written statement, he did not state anything about his purported leave application. He also admitt ed that he did not submit any written reply to the charge sheet. As regards the denial of opportunity to engage Defence Assistant, the workman categorically adm itted that he did not apply for such assistance in writing and that in the enqui ry proceeding he had replied to the questions put ho him on the basis of the ava ilable facts. However, he denied that the Ext. A written statement was a concoct ed letter but admitted that there was no endorsement of receipt of the same by t he management.
Decision
13. In view of the above and more particularly when Ext. A was admitted unde r protest, the learned Presiding Officer could not have held that the workman ha d submitted his written statement of defence against the charge sheet. He also c ould not have held that there was denial of opportunity to engage Defence Counse l by the workman. Even if the said written reply is taken into account, the same cannot absolve him from the charge having regard to his plea in the enquiry pro ceeding. 14. Strangely enough, the learned Presiding Officer, Industrial Tribunal had shifted the burden to the management to prove the charge of unauthorised absenc e for 104 ‰ days on 41 occasions. In the impugned order, it is the finding of th e said learned Tribunal that the Inquiry Officer did not ask the workman as to w hy he was absent for so many days on different occasions as if the burden was wi th the management to prove the same. 15. In view of the above, I have no hesitation to hold that the impugned ord er dated 22.8.2003 (Annexure-N) is not sustainable in law and accordingly the sa me is set aside and quashed. Having regard to the facts and circumstances involv ed and also the provisions of Section 33(2)(b), I am of the considered opinion t hat the management is entitled to the required approval and accordingly the same shall stand granted. 16. Ms. M. Hazarika, learned counsel for the petitioner has placed reliance on the decision of this Court dated 18.8.2003 passed in Civil Rule No. 6669/98, WP(C) No. 4083/2000 and WP(C) No. 4077/2002, in which under somewhat similar cir cumstances, the order of the learned Tribunal was set aside by this Court and wh ile doing so it referred to the decision of the Apex Court reported in (1978) 3 SCC 01. 17. Writ petition is allowed leaving the parties to bear their own cost. The Registry shall transmit the case records immediately.