Judgment · High Court · 2012

Whether the management of Heeleakah Tea Estate, P.O. Kharikatia, Dist. J 1) orhat, Assam are justified in dismissing their workmen Shri Dilip Gogoi and Sri Nabin Chandra Bowrie from their services with effect from 6..4.2000 and 28.6.200 0 respectively ? 2) If not, what relief the workmen are entitled to ? 3) Whether the management of Heeleakah Tea Estate obtained resignation lett ers from their workmen namely Shri MakhanBhagawati and Shri Jogen Saikia on 7.10 .99 by coercive means ? 4) If so, whether the workmen are entitled to resume their duties. Ad/- A. Choudhury, Joint Secy. To the Govt. of Assam Labour and Employment Department. (cid:29)

#2. The said reference having been answered by the impugned award dated 22.1 2.2003 in reference case No. 12/2001 against the workmen, the petitioner is befo re this Court by means of this writ petition assailing the said award.

#3. According to the petitioner, the four Workmen involved in this proceedin g have been meted out with illegality in dispensing with their services. It is t he stand of the petitioner that 2(two) workmen who have been dismissed from serv ice pursuant to a domestic enquiry are the victims of the circumstances and they have been dismissed on some frivolous, unspecific and baseless allegations. The allegation against the 2 (two) workmen who are concerned with the domestic enqu iry was that while scrutinizing and making routine check of the records for the period covering 1997-98, huge discrepancies were noticed. Such discrepancies wer e in respect of manipulation of amounts and making false entries in the Pay Book etc.

#4. So far as the other 2(two) workmen are concerned, they had purportedly t endered their resignations from service and the management duly accepted the sam e. However, it is the case of the petitioner that such resignations were obtaine d by force and it was not a voluntary act of the two workmen.

#5. On receipt of the charge sheet, the two workmen submitted their individu al replies and the management being not satisfied with the same, conducted a dom estic enquiry in which the charges levelled against the two workmen were found t o have been established and accordingly the management dismissed the two workmen from service. Simultaneously, the purported resignations tendered by the other two workmen were also accepted dispensing with the services.

#6. It was in the aforesaid circumstances, the particular dispute was raised by the workmen and the State Government made the aforesaid reference to the Lab our Court, Dibrugarh. The reference was registered and numbered as Reference Cas e No. 12/2001 and the learned Labour Court by its impugned award dated 22.12.200 3 having upheld the dispensation of the services of the 4 (four) workmen, the pe titioner has invoked the writ jurisdiction of this Court towards assailing the s aid award.

#7. I have heard Mrs. A. Bhattacherjee, learned counsel along with Mr. P. Ka lita, learned counsel for the petitioner. I have also heard Mr. S.N. Sarma, lea rned senior counsel assisted by Mr. A. Jahid, learned counsel appearing for the respondent management. I have also perused the entire materials on record includ ing the records received from the Labour Court.

#8. Learned counsel for the petitioner during her painstaking argument, subm itted that the entire action on the part of the management was founded on malafi de and colourable exercise of power and there being no proper appreciation of th e evidence by the learned Labour Court, the impugned award is liable to be set a side and quashed with direction for reinstatement of the workmen in service with all consequential benefits. According to her, apart from the fact that the two workmen were forced to sign the resignation letters prepared by the representati ve of the management, in the departmental enquiry relating to the other two work men, there was gross violation of the principles of natural justice, inasmuch as , they were not provided with the documents relating to the charges inspite of t he assurance furnished by the management and in respect of which a direction was issued by the Enquiry Officer. She has referred to two decisions reported in 19 95 (II) LLJ 625 (Committee of Management Kisan Degree College and Shambhu Saran Pandey and Ors) and 2009 (IV) LLJ115(Mad) (Management of Turbo Energy Ltd. and p residing Officer, Labour Court, Vellore and Another).

#9. Mr. S. N. Sarma, learned counsel representing the respondent management countering the above arguments submitted that a fair and transparent procedure h aving been adopted in conducting the domestic enquiry giving all reasonable oppo rtunities of being heard to the workmen, the same is not assailable in law. He f urther submitted that the learned Labour Court having appreciated in details all the relevant facts and evidence, the impugned award is also not assailable. Ref erring to the records of the case, he submitted that both the issues i.e. whethe r the two workmen had been given due opportunity of being heard or not and as to whether the resignations tendered by the other two workmen was the voluntary ac t or not, having been dealt with by the learned Labour Court appreciating the ev idence on record so as to answer the same against the workmen, this Court exerci sing its jurisdiction under Article 226 of the Constitution of India will not si t on appeal over such finding.

#10. Admittedly, the domestic enquiry proceeded against the two workmen expar te as after the initial appearance they did not appear in the enquiry proceeding . The enquiry was conducted by the Enquiry Officer in presence of 2 (two) indepe ndent observers ; an Assistant Manager and Presenting Officer on behalf of the M anagement. Notice of the domestic enquiry was duly served on the workmen. When t he enquiry commenced on 25.1.2000, a letter was received by the Management just before the enquiry began from the 2 (two) workmen asking for some documents, sta ting that in absence of the said documents, they were not in a position to parti cipate in the enquiry. Accepting the request of the 2 (two) workmen, the enquiry was adjourned and refixed on 2.2.2000 and the Management was requested to furni sh the copies of the documents before the next date fixed.

#11. On 2.2.2000, the proceeding of the domestic enquiry commenced at 2 pm in presence of two independent observers, an Assistant Manager and the Presenting Officer. However, the workmen inspite of notice of the proceeding remained absen t. The Presenting Officer duly produced the Peon Book to show that notice of enq uiry was duly served on the workmen along with the documents which were asked fo r by them. In such a situation and in absence of any intimation by the two workm en, the Enquiry Officer had no other option than to proceed exparte against them . While doing so, the Enquiry Officer observed in his proceeding that notice cle arly stipulated that in case of failure to attend the enquiry on the appointed d ate and time, the enquiry would proceed exparte. The Enquiry Officer examined the witnesses and also the documents exhibi 12. ted by the management and recorded his findings in the enquiry report dated 1.3. 2000 that the charges levelled against the two workmen had been established. Be it stated here that apart from the witnesses examined by the Management, Managem ent also exhibited as many as 59 documents (Ext. 1 to Ext. 59).

#13. Pursuant to the said enquiry report, the management observing the due fo rmalities dismissed the two workmen from their services. As regards the other tw o workmen, their resignations from service were accepted by the Management.

#14. Alleging that the services of the 4 (four) workmen have been illegally d ispensed with, the petitioner initiated conciliation proceeding, which resulted in failure and thereafter a dispute being raised, the Govt. of Assam vide its no tification dated 6.7.2001 made the aforesaid reference to the Labour Court at Di brugarh for adjudication.

#15. On receipt of the reference, the learned Labour Court duly issued notice to the parties asking them to appear. Accordingly both the parties appeared bef ore the said Court and submitted their respective written statement. Evidences w ere also adduced and documents were also exhibited. According to the petitioner, the learned Labour Court failed to apprecia 16. te the materials available on record and passed the impugned award with perverse findings.

#17. Dealing with the case of the two workmen who had been dismissed from ser vice pursuant to the domestic enquiry, their only plea is that they did not part icipate in the enquiry proceeding as they were not provided with the required do cuments. However, the evidence on record speaks otherwise. As recorded in the e nquiry proceeding, the first sitting of the enquiry was held on 25.1.2000 with d ue service of notice to the two workmen. Just before the enquiry began, a letter was sent by the two workmen demanding certain documents. The letter was produce d by the Presenting Officer in the enquiry proceeding and the Enquiry officer di rected the management to furnish the documents to the workmen and adjourned the proceeding to 2.2.2000. However, on the said date, neither the workmen nor their representative turned up to participate in the proceeding. They also did not ma ke any request to adjourn the proceeding. It has shown by the management that no tice and documents prayed for by the workmen were duly served on them through th e Peon Book. Noticing the same, the Enquiry Officer decided to hold the enquiry exparte. Ext. 9 is the Peon Book and Ext. 9(1) is the relevant entry. MW-1 in hi s deposition clearly established the said fact of furnishing the notice and the documents through the Peon Book.

#18. During the course of the domestic enquiry, the management examined its w itnesses and produced the documents relating to the charges. The Enquiry Officer noticed that Ext.16 contained the false entries which were made for illegal gai n, which could be seen from the working sheet and summary prepared (Ext. 16 to 1 8).

#19. It was on the above basis, the management decided to terminate the servi ces of the 2 (two) workmen. As regard the other 2 (two) workmen, the resignation s tendered by them were accepted. The question raised is as to whether such tend ering of resignation from service was a voluntary act or was the product of any force applied by the Management. The Management witnesses in their depositions w ith the supporting documents stated that the two workmen tendered resignations a nd the same was voluntary and no force was applied. MW-3 in his deposition state d that there was allegations of misappropriation of money by the two workmen and one of them came to the Office on 7.10.1999 and admitted his misconduct with th e request to recover the amount from his dues. Simultaneously, by his Ext.18 let ter, he tendered resignation from service. Ext.18(1) is his signature. The lette r was sent to the Management through an Office note and the same was accepted b y the authority. This witness proved that the letter was not obtained by applyin g force. During cross examination, this witness could not be dis-lodged from wha t he had stated in his deposition-in-chief.

#20. signations tendered by the two workmen. MW-4 also stated in the same line in his deposition in respect of the re

#21. From the workmen side, two witnesses were examined in the proceeding bef ore the learned Labour Court. WW-1 in his deposition stated that a letter was wr itten by the Head Clerk and his signature was obtained by force. After 2 (two) m onths, his service was dispensed with by the Management. In the cross examinatio n, he stated that he did not lodge any FIR with the Police in respect of obtaini ng the resignation letter applying force. He admitted that he knows English and could read Ext.18. He also admitted that Ext.18(1) is his signature.

#22. WW-2 also in his deposition stated that the resignation letter was force fully obtained from him but in his cross-examination he stated that Ext.21 resig nation letter was written by himself and that Ext. 21(1) is his signature.

#23. As discussed by the learned Presiding officer, Labour Court, WW-1 submit ted his resignation letter dated 7.10.1999 and the management received the same on 9.10.1999. After waiting for 2 (two) months, the same was accepted on 7.12.99 and the letter of withdrawal of the resignation was submitted by the workman on ly thereafter on 22.12.1999. Similarly, the other workman also submitted his res ignation on 7.10.1999 and the management accepted the same more than two months thereafter on 13.12.1999. it was only thereafter, the workman submitted his lett er of withdrawal.

#24. The question that would arise is as to why the two workmen did not raise any protest, if they were forced to write the resignation letters or any force was applied to them. The resignations tendered by them was accepted nearly after two months. They had enough time to lodge complaint against the alleged force a pplied to them and / or to withdraw the same before acceptance. However, they di d noting of this sort and it was only after acceptance of the resignations tende red by them, they wanted to withdraw the same.

#25. Resignation and acceptance thereof being a bilateral act. Workmen were e ntitled to withdraw the resignations tendered by them till such time the resigna tions were not accepted. However, once the resignations tendered by them had bee n accepted by the management, the offer and acceptance was complete and it was n ot open for the workmen to withdraw the resignation after its acceptance. The fa ct that the workmen had written letter of withdrawal of resignation would also g o to show that the resignation tendered by them was a voluntary act on their par t.

#26. The two decisions on which the learned counsel for the petitioner has pl aced reliance are on the principles of natural justice. In Shambhu Saran Pandey (Supra) it was held by the Apex Court that opportunity should be given to the wo rkmen to inspect the documents and the enquiry should be conducted only thereaft er. In Management of Turbo Energy ltd (Supra), the Madras High Court held that n on-furnishing of documents resulted in prejudice to the workmen and accordingly the award passed in favour of the Management had been interfered with.

#27. None of the aforesaid decisions is applicable to the present case. On th e first date of enquiry when it was brought to the notice of the Enquiry officer that the two workmen had sought for certain documents, he had adjourned the enq uiry to another date with the request to the management to provide the workmen w ith the documents. Accordingly, the Management while informing the Workmen about the next date also provided them with the required documents. This fact has cle arly come on evidence. Even assuming that the workmen were not supplied with the documents it was their duty to come to the enquiry proceeding and make it known to the Enquiry Officer that the documents had not been supplied to them. Instea d they had chosen not to appear before the Enquiry Officer and thereafter took t he plea that since they were not provided with the documents, they were not obl iged to respond to the enquiry proceeding. In my considered view, such plea of t he workmen is not at all tenable.

#28. The learned Labour Court has discussed all the above aspects of the matt er in detail in reference to the evidence on record and the pleas raised by the parties. Although, learned counsel for the petitioner during the course of argum ent tried to persuade this Court to take the view that the findings arrived at b y the learned Labour Court, are based on no evidence and thus are perverse, I am not inclined to accept the said persuasion, inasmuch as, evidences are overwhel ming to establish that the resignations tendered by the two workmen was the volu ntary act on their part and that the enquiry was conducted in a fair and transpa rent manner. The learned Labour Court also duly appreciated the evidence adduced before it and on such appreciation passed the impugned award. I see no reason t o interfere with the same.

#29. on and accordingly it is dismissed, without however, any order as to costs. For all the aforesaid reasons I do not find any merit in the writ petiti

#30. Registry shall transmit the LCR to the learned Court below along with th e copy of this judgement and order.