M/s Kellyden Tea Estate v. NONE

In the context of the pleadings set forth hereinabove, Mr. Sharma, learn 4. ed Senior counsel would contend that the workman has admittedly remained absen t from his duties with effect from 16.10.1996 wherefor on 19.10.1996 and 25.10. 1996 show cause notices were issued to him in his garden’s address for remainin g absent. Thereafter the management had to issue warning letters asking the work man to resume his duties on 29.10.1996, 31.10.1996, 05.11.1996, 08.11.1996, 10.1 1.1996, 15.11.1996 and 19.11.1996, which, however, could not be served upon the workman as he was not found in his quarter and consequently thereupon charge sheet was issued for unauthorised absence but the same again could not be serve d upon him and accordingly on 17.12.1996 the charge sheet was forwarded by regi stered post to his garden address.

Mr. Sharma, learned Senior counsel referring to the pleadings would cont end that thereafter as no reply was received from the workman, the management de cided to hold inquiry into the charges by letter dated 04.01.1997. The said lett er was issued to the workman as well as it was hung in the notice board. The enq uiry was held ex-parte on 06.01.1997 wherein 4 (four) witnesses were examined an d attendance registers were exhibited and the enquiry officer gave his findin gs holding the charges being proved and forwarded his findings to the managemen t for doing the needful. The management on receipt of the enquiry report sent th e findings of the enquiry to the workman on 23.01.1997 asking him to submit his representation, if any. Thereafter the management issued a fresh letter on 07.0 2.1997 giving the workman a fresh opportunity to submit his representation or to appear in person before the management which of course did not yield any resul t and in view of such a situation, the management on 14.03.1997 dismissed the w orkman from service who was a permanent employee of the garden and filed an app lication under Section 33(2)(b) of the Act for approval of the action taken by t he management before the learned Labour Court whereon the learned court registe red a case being Case No. 2 of 1997.

In the proceedings before the learned Labour Court, the workman took the plea that he was in hospital wherefrom he was discharged on 05.07.1996. Thereaf ter, he was arrested on 17.10.1996 by police. He was released on bail on 25/26.1 2.1996 and if the contentions of the workman is believed then also the notice of enquiry dated 04.01.1997, the domestic enquiry which was held on 06.01.1997, t he forwarding letter of the findings of the enquiry officer dated 23.01.1997 as well as letter dated 07.02.1997 and the dismissal order dated 14.03.1997 were issued to the workman when he was not in jail and admittedly during this perio d he was absent from his duties and the workman’s own case is that he had ap proached the management after 16.10.1996 to allow him to join in his duty for th e first time on 28.06.1997 which would reveal that from December 1996 to June 1 997 he remained absent unauthorisedly and the management apart from adducing evi dence exhibited the attendance register to show that the workman was absent co ntinuously and registered letter vide Exhibits- 21, 22, 23 and 24, were retur ned/refused by the workman indicates that the dismissal order requires approval by the learned court, contended Mr. Sharma. However, the learned Labour Court d id not accord approval to the order of dismissal of the workman holding that the management has failed to examine the postal peon. On this point the learned Sen ior counsel referred the decision of the Apex Court reported in (2000) 1 LLJ 16 30 (Syndicate Bank -vs- GSSB Staff Association) wherein the Apex Court in paragr aph 15 of the judgment held that when a notice is sent on correct address wh ich was returned with the endorsement (cid:28)refused (cid:29), then a clear presumption aros e that the addressee is aware about the contents of the notice and in such case postman is not required to be examined and on this ground alone the interferenc e is required holding that the learned court has committed an error apparent on the face of the record in not according approval of the order of dismissal, contended by Mr. Sharma.

Mr. Sharma would further contend that the learned Labour Court has commi tted an error apparent on the face of the record in holding that the award of di smissal for remaining absent is too heavy a punishment and the management could have avoided such situation by passing lesser punishment other than dismissal t hereby the management has taken the risk of their action being disapproved, wh ereas it is settled position of law that in an application under Section 33(2)( b) of the Act, the court cannot substitute the quantum of punishment awarded by the management and section 11-A of the Act has no application in an application under Section 33(2)(b) of the Act, more so, when it is a settled position of la w that approval of dismissal under Section 33(2)(b) is not an industrial adjud ication and even after granting approval under Section 33(2)(b), the workman is at liberty to raise an industrial dispute and get the dispute referred under Sec tion 10 of the Act, contended by the learned Senior counsel. Mr. Sharma further submitted that the findings of the learned court dated 01.06.1999 in case No. 2 of 1997 requires to be interfered with under certiorari jurisdiction. In support of his contentions, Mr. Sharma has placed reliance on the fol (2009) 4 LLJ 558 Gau (Md. Adul Rahim -vs- Management of Cachar Paper Mil

lowing decisions: - 1. l, HPC Ltd., Assam) 2. (2005) 4 GLT 635 (Indian Oil Corporation Ltd -vs- Presiding Officer & Ors.), 3. 4. 5. 6.