High Court · 2012

As the workmen refused to accept the show cause notices, on 21.1.1988, t 5. he management appointed one Sri P.K.Bhattacharjee, an Advocate of Jorhat as the Enquiry Officer. A domestic enquiry was conducted by the said Enquiry Officer. O n completion of the enquiry, the Enquiry Officer submitted his report on 11.4.19 88 holding the workmen guilty of the charge.

6. Acting on the enquiry report, the management terminated the services o f the workmen on 22.8.1988. As there was a pending reference before the learned Labour Court at Dibrugarh, the management filed application u/s 33 (2) (b) of th e Industrial Disputes Act,1947 (Act) seeking approval to the termination from se rvice of the workmen . On approval being granted, the workmen were terminated fr om service w.e.f. 22.8.1988. After almost six years from such termination, the State Govt. issued not 7. ification dated 7.3.1994 referring the dispute relating to termination of the wo rkmen from service to the learned Labour Court at Dibrugarh for adjudication. T he said reference made u/s 10(1) of the Act was registered as Reference Case No. 5/1994.

8. k Union) appeared and filed their written statements. Both the management and the workmen (represented by the Assam Chah Srami

9. The learned Labour Court after taking evidence from both the sides an d after considering the evidence so adduced and after hearing the submissions o f the parties, passed award dated 20.11.2002 holding that the management had fai led to prove that the workmen were guilty of misconduct and accordingly, they w ere held entitled for reinstatement with full back wages. Following the same, Govt. notification dated 19.2.2003 was issued u/s 17(1) of the Act directing tha t the award be published, which was thereafter published. Petitioner received copy of the award on 19.3.2003 from the office of the Asstt. Labour Commissio ner, Sivasagar.

10. Aggrieved , the management has filed the present writ petition with the grievance as indicated above. This Court by order dated 24.8.2004 while admitting the writ petition, h 11. ad stayed the operation of the award dated 20.11.2002 until further orders . On an application filed by the workmen u/s 17 B of the Act, this Court passed o rder dated 4.5.2005 in Misc. Case No. 598/2005 modifying the earlier order date d 24.8.2004 and ordered that the management would release the entitlements of two of the workmen, namely, Sri Suresh Bhuyan and Sri Barun Mal u/s 17 B of the Act w.e.f. 28.8.2004.

12. The respondent No. 3, Assam Chah Sramik Union has filed their affidavit- in-opposition. In the said affidavit, the respondent No.3 has denied the narrati on of facts made by the petitioner and has stated that in the morning of the rel evant day i.e. on 5.5.1987, the concerned workmen had gone to the office of the Tea Estate to deliver a charter of demand to the Tea Estate Manager. The demand s were as under: to accord recognition to Assam Chah Sramik Union of which the workers

1. were members, 2. use of their union activities , and 3. to pay arrear bonus for three months at an early date. to reinstate three workers who were earlier dismissed from service beca Copies of the said representation were forwarded to various authorities 13. including the Asstt. Labour Commissioner, Sivasagar, Officer-in-Charge, Mathurap ur P.S. etc. When the Manager came out of his office, the workmen wanted to hand over their charter of demand but he refused to accept the same on the ground th at the union was not a recognised one. The allegation that the workmen had provo ked the other workers to create an untoward situation has been denied. The respo ndent No.3 has also submitted that the domestic enquiry was not conducted with a free, fair and open mind. It is further stated that since their termination, al l the workmen are out of employment and not gainfully employed anywhere.

14. Mr.A.Biswas , learned counsel for the petitioner in his elaborate submis sion has argued that there was inordinate delay in making the reference and thou gh objection was raised by the management about the delay, the learned Labour C ourt failed to consider this aspect of the matter. He also submits that the do mestic enquiry was conducted as per procedure giving full opportunity of heari ng to the workmen and for the failure to furnish the list of witnesses along with the show cause notices , the learned Labour Court ought not to have hel d the proceeding as invalid and improper inasmuch as the workmen had to prove and satisfy the Court that non-supply of list of witnesses had caused prejudice to them, which they failed to do. Referring to the evidence adduced by the manag ement witnesses, learned counsel submits that on a cumulative assessment of the evidence adduced, it cannot be said that the workmen had not misconducted themse lves. Further submission is that out of six workmen, four have expired and only two are surviving, namely, Sri Suresh Bhuyan and Sri Barun Mal. In respect of the claim of the legal heirs of the expired employees, the respondent No.3 canno t represent their cause, he submits. Learned counsel for the petitioner refers t o and relies upon the following judgments:

1. 2. 3. 4. 5. 6.