High Court
Case Details
WP(C) 3081/2005 BEFORE HON’BLE MR JUSTICE B.K.SHARMA This writ petition is directed against the order dated 25.2.2005 passed by the l earned Presiding Officer, Industrial Tribunal, Silchar in Misc Case No. 6/2003 d eclining to grant approval to the order of dismissal passed against the workman pursuant to a domestic enquiry. I have heard Mr J Roy, the learned counsel for the petitioners and so also Ms P Chakraborty, the learned counsel representing the workman i.e. the respondent No .2. I have also gone to the entire materials including the LCR received from th e learned Tribunal. The respondent No.2 while was serving as Forest Supervisor (SG) at Cachar Paper Mill under Hindustan Paper Corporation was taken up for a disciplinary action v ide Annexure-1 charge sheet dated 21/24.6.2002. It was alleged that he along wit h the officials named in the charge sheet had left the working place on 7.4.2002 and visited the particular check gate of the HPC, CPM and made unauthorized cha nges of original entries in the particular Registers. The defence of the respond ent No.2 was that he had visited the particular check gate as per instruction of his Controlling Officer. He admitted that he had worked on some Registers maint ained at the particular check gate called Lailapur Check Gate which related to b amboo supply works of Mizoram. Thus his defence was that whatever he had done wa s as per instruction of his Controlling Officer. However he did not deny the all egation made in the charge sheet that by making the fresh entries incorporating new particulars he along with others had defaced the original records with malaf ide intension and to illegally benefit the bamboo suppliers thereby causing loss to the Corporation.
Legal Reasoning
As regards the finding that the enquiry proceeding was not appropriate and prope r and the Management failed to prove prima facie case against the workman, apart from the fact that such scrutiny was not within the jurisdiction of the learned Tribunal, while examining the prayer of the Management made under Section 33(2) (b) of the Industrial Disputes Act, 1947, on perusal of the materials on record including the above quoted defence statement of the workman, it cannot be said to be a case of improper enquiry and failure on the part of the Management to pr ove the case against the workman. In the departmental enquiry it is the preponde rance of probability which matters and the charge is not required to be establis hed beyond all reasonable doubt like a criminal proceeding. For all the aforesaid reasons, I am of the considered opinion that the impugned order dated 25.2.2005 passed by the learned Tribunal, Silchar in Misc Case No. 6 /03 is not sustainable in law and accordingly the same is set aside and quashed. The prayer in the application submitted by the Management under Section 33(2 ( b) of the Act shall sand granted. It is made clear that all the observations made above shall in no way prejudice the case of the workman in case of raising the industrial dispute relating to th e penalty of removal from service. Writ petition is allowed leaving the parties to bear their own costs.
Arguments
In due course one Shri DB Mazumdar, Manager (Purchase) was appointed as Enquiry Officer. The presenting Officer was also appointed. In the domestic enquiry, wit nesses were examined and documents were exhibited. It will be appropriate at tha t stage to refer to the defence of the workman which is quoted below:- (cid:28) On 7.4.02 I visited Lailapur/Vairangtee check gate office at about 4 PM from F ulertal. On way at Silchar Sri AK Bakshi, Shri Ashok Krf Roy, Shri Ranjan Roy an d Sri Biswajyoti Deb also joined with me. We all together reached Lailapur/Vaira ngtee at about 4 PM. Reaching Vairangtee/Lailapur Check gate office we found Sri R Venkal and Sri N Naiding was also there at the check gate office. Thereafter some Registers maintained at Lailapur/Vairangtee check gate offices were re-writ ten by different aforesaid officials other than Sri AK Bakshi. Also copies some entries in a new Registerin respect of M/S J.M. Saha’s Register pertaining Bhair abi available at Lailapur/Vairangtee. My visit to Lailapur/Vairangtee and reco rding of Register entries was as per verbal instruction of our Reporting Officer Sri A.K. Bakshi as explained in my reply dated 4.7.02. (cid:28) In conclusion of the enquiry, the Enquiry Officer submitted his report holding t he petitioner guilty of the charge leveled against him. Thereafter following the due procedure the Disciplinary Authority i.e. Senior Manager (Forest) for and o n behalf of HPCL and CPM by its Annexure-9 order dated 16.6.2003 imposed the maj or penalty of removal from service with the stipulation that the same would not be disqualification for future employment. Since a reference being Reference No. 5/99 and Reference No. 15/99 was pending before the Industrial Tribunal at Silchar, Cachar, as per the requirement of S ection 33(2) (b) of the Industrial Disputes Act, 1947, the Management of HPC mad e an application to the said Tribunal seeking approval of the order of removal r eferred to above. In the meantime, the workman had preferred an Appeal which was also dismissed by the Appellate Authority by its order dated 17.7.2003. The application made by the Management of HPC under Section 33(2)(b) of the Act was rejected by the Tribunal vide its impugned order dated 25.2.2005 passed in M isc Case No. 6/03. The grounds on which the application has been rejected are as follows :- (1) The order of removal was passed by the authority lower than the Appo inting Authority; (2) While imposing the penalty of removal from service, the Management did not t ake into account the gravity of misconduct, the previous service records of the workman and any other extenuating circumstances. (3) The enquiry proceeding was not appropriate and proper and the Management fai led to prove prima facie case against the workman. Mr J Roy, the learned counsel for the petitioners submits that the aforesaid gro unds on the basis of which the impugned order has been passed are non est. He al so submits that the learned Tribunal exceeded its jurisdiction while deciding th e question under Section 33 (2)(b) of the Act. He further submits that one of th e co-accused against whom also domestic enquiry was conducted was removed from s ervice which he unsuccessfully assailed before this Court by filing WP(C) No. 65 9/03 followed by Writ Appeal No. 196/06. The said writ petition and the Writ App eal were dismissed by the judgment and order dated 11.4.2006 and 8.1.2010 respec tively upholding the order of removal from service. The basic difference between the said writ petitioner and the respondent No.1 involved in this proceeding is that when the said petitioner was in the category of officer, the respondent No .2 herein was in the category of workman. Ms P Chakraborty, the learned counsel for the respondent No.2 submits that there is no infirmity in the impugned order. Referring to Clause 30(G) of the certifi ed standing orders, she submits that before passing the order of removal from se rvice it was incumbent on the part of the disciplinary authority to consult the previous records of the workman and also other extenuating circumstances. As to what was the charge against the workman is noted above. In the domestic en quiry, he had virtually admitted the change with the only defence that whatever he had done was as per verbal instruction of his Controlling Officer. Being a re sponsible officer of the employer it was not his duty to leave his place of post ing to another place (check gate) for the purpose of removing the original entri es in the particular Registers by way of replacing the same with new entries. Mr Roy, the learned counsel for the petitioners has drawn my attention to Annexu re-21 Circular dated 29.8.1997 depicting the schedule of competent authority for appointment and disciplinary action in respect of the workmen covered under the standing orders. As per the said circular the petitioner and the employees work ing in the Forest Department including the establishments at Haflong, Karimganj and Silchar Forest Offices were under the DGM(Forest)/ Senior Manager (Forest). The said authority is the Appointing Authority and the Disciplinary Authority. In the reply affidavit filed by the respondent No.2, it has been stated that the said circular was not circulated and as such the workman was not aware of the s ame. Even if the stand of the workman is accepted, the same is immaterial inasmu ch as per the said circular the DGM (Forest II)/ Senior Manager (Forest III) is the Appointing and Disciplinary Authority of the respondent No.2. The said posit ion does not get altered because of non-receipt of the circular by the responden t No.2. Mr Roy, the learned counsel for the petitioners has seriously disputed t hat the workman was unaware of the said circular. Above being the position, the learned Tribunal could not have held that the work man was removed by the authority lower than the Appointing Authority. As regards non-examination of the previous records of the workman and other exte nuating circumstances suffice is to say when the Disciplinary Authority passed the impugned order it had naturally taken into consideration all the attending facts and circumstances which need not be reflected in the order of removal. It is for the Disciplinary Authority to decide as to what punishment should be impo sed on the workman. Having regard to gravity of the offence, if the Disciplinary Authority decided to impose the penalty of removal from service no fault can be attributed against the said authority.