High Court
Case Details
WP(C) 3593/2004 BEFORE HON’BLE MR JUSTICE B. K. SHARMA JUDGMENT & ORDER (oral)
Legal Reasoning
This writ petition is directed against the award dated 26.09.2003 (Annex ure-6), by which the particular reference has been answered in favour of the man agement and against the workman. The workman represented by the petitioner Assam Chah Karmachari Sangha while was working as second Godown clerk under the respo ndent No.1, i.e. Numaligarh Tea Estate, along with one Sri P. C. Baruah, head Go down clerk, was charge sheeted for the alleged shortfall of 7333.3 kg of rice an d 3875.8 kg of Atta. Said shortfall had been detected on 30.09.1992 by the Audit and Accounts Officer. In course of physical verification of stocks on 02.10.199 2 it was alleged that such shortfall was acknowledged by both the delinquents i. e. the petitioner and Sri P. C. Baruah, Head Godown clerk. In the charge sheet d ated 20.10.1992 (Annexure-I) it was alleged that if the shortfall was quantified in monetary terms, the same would be Rs. 38,866.492 in respect of rice and Rs.1 6,278.36 in respect of Atta. Delinquents were charged with theft, fraud and dish onesty in connection with the company’s vigilance and property attributing gross misconduct under the standing orders enforced. 2. On the basis of the charge, the workman while denying the same also sta ted that he was only a second Godown clerk and his function was to maintain the record of disbursement and receipt of food grains by the Tea Estate. It was also stated that the record did not indicate any shortfall. According to the workman he was on leave on many occasions and his function was attended to by his colle agues and the first Godown clerk Sri Pulen Chandra Baruah and thus the charge le velled against him was not sustainable. The management being not satisfied with the reply furnished by the workm 3. an appointed an Enquiry Officer to conduct the domestic inquiry to find out the veracity or otherwise of the charges levelled against both the delinquents. Upo n such appointment, a common inquiry was conducted by the Inquiry Officer. On co nclusion of the inquiry, the Inquiry Officer held the workman guilty of the char ge and acquitted the other delinquent workman namely, P.C. Baruah. Pursuant to the said findings recorded by the Inquiry Officer, the workman was dismissed fro m service without the benefit of gratuity. Upon such dismissal of the workman a dispute was raised and the Government in the Labour and Employment Department by its notification dated 16.02.1994 referred the following issue to the Labour Co Whether the Management is justified in dismissing the workman Sri Tulsi urt at Dibrugarh. (cid:28)1. Kanta Gogoi, Store Clerk from his ervice with effect from 31st December/92? 2. If not, whether the workman is entitled to re-instatement with full back wage s? 3. Any other relief in lieu thereof. (cid:29) 4. The reference was heard and decided in favour of the workman by the awar d passed on 26.09.2003. However, when the same was challenged by the Management by filing a writ petition being Civil Rule No. 2020/1998, the writ petition was disposed of on 19.06.1999 directing the Labour Court to re-examine the reference on the basis of the evidence adduce by both the parties. Be it stated here that before the learned Labour Court also, the parties had adduced evidence in addit ion to the evidence adduced during the domestic inquiry. 5. The aforesaid decision of the learned Single Judge was challenged by the workman in the form of writ appeal No. 319/1999 which was disposed of by order dated 06.06.2001. modifying the order of the learned Single Judge to the extent that the reference should be reviewed only on the basis of the evidence laid by the parties before the Inquiry Officer. On such remand, the reference was rehear d and the impugned award having been passed against the workman, the petitioner has filed the instant writ petition challenging the said award. 6. I have heard Ms. A. Bhattacharya, learned counsel for the petitioners. I have also heard Ms. K. Devi, learned State Counsel. None has appeared for the M anagement i.e. respondent No.1. I have also gone through the entire materials on records. 7. Ms. A. Bhattacharya, learned counsel for the petitioners referring to th e materials on record submits that the learned Presiding Officer, Labour Court, Dibrugarh, has committed manifest error of law as well as of facts. She submits that upon remission of the matter by this Court it was incumbent on the part of the learned Presiding Officer to go into the evidence on record instead of uphol ding the report submitted by the Inquiry Officer in the domestic inquiry on the plea of lack of jurisdiction to go into the evidence. 8. Referring to the evidence adduced by the management witnesses, she submi ts that on perusal of the said evidence nothing is discernable that the workman was responsible for the shortage of Rice and Atta as was attributed to him. She also submits that other delinquent, namely, Sri P. C. Baruah having been exonera ted in the domestic inquiry, although he was charge sheeted at par with the work man, that aspect of the matter ought to have been considered by the learned Pres iding Officer instead of upholding the domestic inquiry and the dismissal of the workman from the services of the management. 9. I have given my anxious consideration to the submissions made by the lea rned counsel for the petitioners. As noted above, none has appeared for the mana gement. The learned Labour Court has upheld the impugned order of dismissal, pri marily on the ground that there was no violation of the principles of natural ju stice in conducting the inquiry unmindful of the fact that it was also incumbent on its part to find from the evidence as to whether it was a case of no evidenc e at all or of perverse finding on the basis of the evidence available on record . 10. As noted above, as per the direction of this Court the matter was to be reheard and considered on the basis of the evidence that was adduced during the inquiry. Thus, it was incumbent on the part of the learned Labour Court to look into the evidence to find out as to whether the evidence would establish the cha rge against the workman. 11. In consideration of the evidence on record what is found is that the man agement had examined four witnesses as MW-1, MW-2, MW-3 and MW-4. None of the wi tnesses in their deposition could establish the charge against the workman. 12. MW-1, in his deposition generally stated about the purported shortage wi thout attributing the same to the workman. In his cross examination he had state d that he had gone to the Tea Estate on 02.10.1992 to inquire into the matter to verify the alleged shortage. He also stated that the physical verification was carried out on 13.09.1992 but he was absent. He in his deposition also stated t hat ration was being issued on 02.10.1992. According to him the physical verific ation was done in presence of MW-2, i.e. the Assistant Manager. Although, he in his deposition stated about the purported over-writing in Ext-15, but could not bring out any material contradiction therein. In his cross examination he admitt ed that he did not inspect the Godown himself. 13. MW-2 in his deposition stated that he had conducted the physical verific ation on 13.09.1992 as was directed to by the management. Significantly, he in h is deposition stated that he did not know as to how many numbers of bags were th ere. MW-3 and 4 in their depositions could not state anything material relatable to the charge. They in their deposition only stated about what they had heard f rom others. It is on the basis of the aforesaid evidence, the Inquiry Officer held t 14. he charge against the petitioner to have been established. As per the direction of this Court the said evidence was to be appreciated by the learned Labour Cour t. I have gone through the findings of the Inquiry Officer, on perusal of w 15. hich nothing is discernable about establishment of charge against the workman. T he basis of returning the finding that the charge against the workman had been e stablished is the document exhibited as Ext-15, 18 and 19. Both Ext-15 and 20 we re produced by the management pertaining to the signatures of both the delinquen ts. Similarly, Ext-18 and 19 also contained the signatures of both the delinquen ts. Referring to the statement of MW-1, the Inquiry Officer held that the entrie s made therein was correct and on that account, held the workman guilty of the c harge. Significantly, although the Inquiry Officer in his finding has recorded t hat the physical verification was conducted on 13.09.1992 by both the delinquent s and prepared the Ext-15 but the other delinquents namely, P.C. Baruah, who was the head Godown clerk was exonerated from the charge. 16. As has been held in Girish Chandra Sarmah Vs. Bongaigaon Refinery & Petr ochemical Ltd. & Ors reported in 2006 (1) GLT 235, in case of any collective res ponsibility, one of the members cannot be picked up for attributing the miscondu ct. In the said case the appellant was taken up for a departmental proceeding in respect of a collective decision by a committee. When it was found that the mat erials did not disclose that the appellant had the exclusive and decisive role t o play in the matter it was held by the Division Bench of this Court that the ap pellant could not have been picked up for differentiate treatment and allowed th e appeal and the penalty order was set aside. 17. The aforesaid decision of this Court was carried on appeal before the Ap ex Court and it is submitted that the said appeal has also been dismissed affirm ing the decision of Division Bench. 18. In a departmental proceeding the charge is required to be established ag ainst the delinquent applying the test of preponderance of probability. However, while doing so there will have to be at least some evidence. But in the instant case on perusal of the evidence on record there is no evidence to sustain the c harge levelled against the petitioner. That apart the most vital aspect of the m atter i.e. the plea of the workman that he was on occasional leave and that his duty was during day time and at night the Godown was guarded by a chawkidar was not considered by the Inquiry Officer followed by the learned Labour Court. It i s not the definite case of the management that the alleged shortage of food grai n was directly attributable to the workman. As noted above, he was only second i n charge of the Godown and above him there was Head Godown in charge namely, P. C. Baruah, who has been exonerated from the charge, although, he was similarly c harged along with the workman. 19. For all the aforesaid reasons, I am of the considered opinion that the i mpugned award dated 26.09.2003 passed by the Labour Court of Assam at Dibrugarh in reference to case No. 4 of 1994 is not sustainable in law and so also the fi ndings recorded by the Inquiry Officer in the domestic inquiry. Consequently, th is writ petition is allowed by setting aside and quashing the impugned award and so also the findings recorded by the Inquiry Officer, consequent upon which the workman was dismissed from service. As a natural corollary. The order of dismis sal that was passed against the workman shall also not stand. 20. This now leads to the question of entitlement of the workman. The impugn ed order of dismissal was passed way back in 1992 and since then the workman is not in service. As per the order of dismissal, the workman is not entitled to an y retirement gratuity. It is also submitted that in the meantime he was attained the age of superannuation, presently he is about 62 years. As per the normal ag e of retirement i.e. he would have retired from service in the year 2010. Consid ering the matter in its entirety, it is hereby provided that upon deemed reinsta tement in service with consequential pensionary and other benefits to the petiti oner, he will be entitled to back wages to the extent of 50%. 21. ny order as to costs. Writ petition is allowed to the extent indicated above, without having a