High Court
Case Details
WP(C) 1843/2007 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY
Legal Reasoning
Heard Mr. K.P. Sarma, the learned Senior Counsel appearing for the petitioners. The respondent No.1 is represented by Ms. M. Goswami, the learned Government Adv ocate. The workmen (respondent No.2) are represented by the learned Senior Couns el Mr. A. Dasgupta. 2. The Management of the Mornai T.E. challenges the Award dated 25. 5.2006 (Annexure-H) in Reference Case No.1/1999 of the learned Labour Court, Gu wahati, whereby the dismissal of the 8 female T.E. workers was declared to be wr ongful and they were ordered to be reinstated with 50% back wages. 3. Previously the Charge Memo dated 3.10.1996 (Annexure-A) was issu ed against the workmen with the allegation that on 28.9.1996 at about 8 A.M., th ey trespassed into the office premises of the 2 Assistant Manager and unlawfully demanded suspension of the estate work which couldn’t be authorised at the leve l of the Asst. Managers. Thereafter defying the prohibitory order, the workers t respassed into the Manager’s bungalow and threatened the Manager’s wife in absen ce of the Manager with criminal intimidation and also damaged the bungalow prope rty. 4. In their reply to the Charge, the workmen stated that they reque sted the Assistant Managers for suspension of work for the funeral rituals of th eir co-worker Sagarika Soren and since the two Assistant Managers expressed thei r inability to take a decision and referred them to the Manager, they went to th e Manager’s bungalow accompanied by the Assistant Managers for directly requesti ng the Manager and on finding that the Manager is absent, they returned from the Bungalow. 5. But dissatisfied with the reply the Management ordered an enquir y and the enquiry officer gave his finding on 24.1.1997 (Annexure-E) to the effe ct that the charged workers were guilty of acts of gross mis-conduct and are the refore liable for disciplinary action. Thereafter the 2nd show-cause-notice was issued and upon consideration of the reply, the 8 workmen were dismissed from se rvice, through the order dated 11.9.2007 (Annexure-G) issued by the Manager of t he T.E. When the aggrieved workmen challenged the dismissal order and th 6. e conciliation proceeding failed, the resultant industrial dispute was referred under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to a s the (cid:28)I.D. Act (cid:29)) on the following two issues : (cid:28)1. Whether the Management of Mornai Tea Estate is justified in term inating the services of (1) Smt. Sita Marandi, (2) Smt. Juliani, (3) Smt. Sugi S induria, (4) Smt. Chita Dhodrai-III, (5) Smt. Flowrance Tudu, (6) Smt. Amrita B urla, (7) Smt. Elani Flora, (8) Smt. Basanti Topno ? 2. If not, whether the Wrokemn are entitled to re-instatement with full back wages or any relief in lieu thereof ? (cid:29) 7. After pleadings were exchanged before the learned Labour Court t he Management presented 9 witnesses whereas 3 witnesses were offered from the si de of the workmen. The Labour Court observed from Exbt.-W-1 that an F.I.R. was f iled on the trespass incident and the Tamarhat P.S. Case No.84/1996 under Sectio n 147/149/447/427/506 IPC was registered. But since the police investigation did not yield any evidence against the accused workmen, the Final Report No.24/1997 was filed in the police case. 8. On due consideration of evidence, the Presiding Officer of the L abour Court observed that the incident of 28.9.1996 happened in the backdrop of the death of one co-worker Sagarika Soren in the T.E. who was brutally murdered in the previous day. The workmen was demanding supply of coffin as per the usua l practice for the burial of the deceased. But since the coffin could not be mad e available by the Assistant Managers, they tried to meet the manager in his bun galow and the resultant trespass and the intimidation was attributed by the Labo ur Court to the (cid:28)emotional outburst (cid:29) of the charged female workers of the T.E. T he Court opined that there was no procedural lapses in the disciplinary proceedi ng and the finding of the enquiry officer was also accepted by the Labour Court. But the Court noticed mitigating factors for the misconduct. Moreover the choic e of punishment as described as astonishing by the Court by observing that becau se of personal involvement of the Manager, stringent punishment is inflicted for a small offence. Accordingly the Presiding Officer found the misconduct to be n on-substantial and opined that admonition would have sufficed and on this basis, the dismissal order was set aside and the workmen were directed to be reinstate d through the impugned Award dated 25.5.2006 (Annexure-H). 9.1 Assailing the legality of the Award, Mr. K.P. Sarma, the learned Senior Counsel for the Management projects that the workmen deliberately disobe yed the direction of the Management, committed trespass, indulged in disorderly behaviour and caused damage to the property of the T.E. and since this amounts t o gross mis-conduct, the leniency shown by the Labour Court is contended to be m isplaced. 9.2 The petitioners submit that unless discipline is maintained in a T.E., it would be well-nigh impossible to manage an estate and accordingly Mr. Sarma submits that since the workmen have been found guilty of gross mis-condu ct, the punishment of dismissal is contended to be appropriate and proportionate . 9.3 The Counsel projects that the workmen forcibly trespassed into t he garden Manager’s bungalow and intimidated the Manager’s wife and the 2 Assist ant Managers and it was a clear case of insubordination and disobedience and sin ce such mis-conduct is covered under Clause 10(a)(1)(2) of the Standing Orders o f the T.E. the only appropriate punishment for such gross mis-conduct, as per no rms, is the punishment of dismissal. 10.1 Representing the workmen, Mr. A. Dasgupta, the learned Counsel f irstly projects that all the 8 charged workmen were female workers of the T.E. a nd there is no evidence of any physical assault or mishandling of the superiors by the charged workers. The Counsel refers to the emotionally surcharged atmosph ere in the garden on account of the murder of a female co-worker Sagarika Soren and the demand for supply of coffin for the funeral and submits that if the mis- conduct is examined in this backdrop, the punishment of dismissal is disproporti onate and accordingly he argues that the Labour Court rightly quashed the dismis sal order. 10.2 Referring to Section 11A of the I.D. Act, Mr. Dasgupta submits t hat the Labour Court is fully competent to re-examine the evidence and direct re instatement of the workmen or substitute the punishment when necessary. But in s o far as the scrutiny by the Writ Court to the impugned award, the Counsel submi ts that power of Judicial Review is to be exercised only on well known parameter s. 11. For exercise of Judicial Review Power, the Supreme Court in Unio n of India vs. G. Ganayutham reported in (1997) 7 SCC 463 has declared that nor mally the Wednesbury test is to be applied to determine if the impugned decision was illegal or suffer from procedural improprieties or it is one such, which no sensible decision-maker could, on the material before him and within the framew ork of law, can arrive at. The Court would examine whether the relevant matters had not been taken into account or whether irrelevant matters had been taken int o account or whether the action was not bona fide. The Court would also examine the decision from the perspective of absurdity or perversity. But the correctnes s of the choice made by the authority will not be examined by the Court and thes e are declared as the principles underlying the Wednesbury test. 12. But the Management’s lawyer relies upon M.P. Electricity Board v s. Jagdish Chandra Sharma reported in (2005) 3 SCC 401 where the Apex Court emph asized on discipline in workplace as a sine qua non for efficient working for th e Management. Consequently in that case since the charged employee was found to have physically assaulted a superior officer with a tension screw on his back a nd on his nose, leaving the officer with a bleeding and broken nose, it was held to be breach of discipline in the organization and on this count, the Supreme C ourt declined to interfere with the dismissal penalty of the workmen. The next case cited by the Mr. K.P. Sarma is Union of India vs. 13. R.K. Sharma reported in (2001) 9 SCC 592 where a Dy. C.O. of Assam Rifles Organi zation was charged for infringement of military discipline, unbecoming behaviour and false statement under Section 45, 57 & 63 of the Army Act. After noticing t hat the charged officer could have been punished with imprisonment ranging from 7 to 14 years and also dismissal from service, the Supreme Court found the punis hment of dismissal appropriate for the misconduct bearing in mind that the delin quent was a disciplined member of the Armed Forces. The Management lawyer also cited State Bank of India vs. Bela B 14. agchi reported in (2005) 7 SCC 435 where a bank employee was found to have indu lged in fraudulent and fictitious credit entry in the Pass Book of Account Holde rs and observing that the bank employee is required to exercise higher standards of honesty and integrity, the Court left the punishment of dismissal undisturbe d. 15. While Wednesbury Principle of unreasonableness has been the basi s for exercise of Judicial Review Power a gradual shift from Wednesbury principl e of unreasonableness to the doctrine of proportionality by Indian Courts was no ticed by the Apex Court in State of Madhya Pradesh vs. Hazarilal, 2008 (3) SCC 273. Under this parameter, the Court is required to examine whether the punishm ent of dismissal was disproportionate in a given case. In the facts of this case it must be borne in mind that the accused workers never indulged in any physica l assault and therefore the ratio of Jagdish Chandra Sharma (supra) shouldn’t be applied in this case to judge the proportionality of the punishment. That apart , the workers here all female workers of a T.E. and the standard of discipline u nder the Army Act is clearly not attracted in this case. The Bela Bagchi (supra) where the penalty of dismissal was found to be proportionate by the Apex Court was a case of bank officer indulging in fraud and manipulation of pass book of b ank’s customers. Therefore the cases cited by the management to support the puni shment of dismissal in my view can’t be applied to test the proportionality of t he impugned decision. 16. As earlier noted the Final Report in the Tamarhat P.S. Case No.84/1996 was filed with the observation that there was no evidence to prove the criminal charges. More importantly even in the domestic enquiry the workers were not foun d to have indulged in any physical assault when they trespassed into the office of the two Assistant Managers and the bungalow of the garden Manager. While the y may have been asked by the Assistant Managers to not to enter the Manager’s bu ngalow and this may amount to disobedience of the order of a superior, to say th at this itself should warrant dismissal from service, would certainly be disprop ortionate. I therefore find that the Labour Court’s award is based on relevant c onsideration and is a reasonable decision. 17. The Labour Court observed the emotionally surcharged atmosphere in the garden in the aftermath of the murder of the female co-worker Sagarika So ren and the demand of the workmen to provide a coffin for her funeral and suspen sion of the estate work to conduct the last rites. In the backdrop of this situa tion, the mis-conduct of the charged workers was described as (cid:28)emotional outburs t (cid:29) by the Labour Court. This mitigating observation of the Court in my view can’ t be said to be irrational as they are based on relevant factors which were righ tly taken into account by the Labour Court. Therefore I see no scope to interfer e with the order of reinstatement for the dismissed workers. The Court is next required to take note of the alternate argumen 18. t advanced by the Management’s lawyer to the effect that reinstatement should no t have been ordered with back wages. Since the award was challenged here by the Management, the dismissed workers are being paid their last drawn wages under S ection 17 B of the I.D. Act. Moreover, they are also allowed to occupy their lab our quarter in the T.E.. Therefore although jobless, the basic needs of the work ers are being catered to. Consequently balancing the interest of the workmen and the management, I feel that the Management should not be fastened with the resp onsibility to pay back wages to the reinstated workmen. But since only last draw n wages is payable under Section 17 B of the I.D. Act and salary has risen in th e meantime, on equitable consideration, the workers are ordered to be paid Rs.25 ,000/- each by the Management. This small amount will assuage the feeling of the dismissed female workers and will make them feel that justice is done to them f or wrongful dismissal. If any of the 8 workers have expired in the meantime, the benefit will be paid to their legal heirs. However although back wages is not b eing paid, the interregnum period of the service break should be taken into acco unt for retirement benefits (if any) of the reinstated workers It is ordered acc ordingly. 19. With the aforesaid direction, the impugned Award dated 25.5.2006 (Annexure-H) of the Labour Court is partially modified on the direction for bac
Decision
k wages. The case stands disposed of accordingly without any order on cost.