High Court · 2012

2. Shortly stated the fact leading to filing of the instant writ petition a re that the concerned workman Shri Mohendra Dutta while was serving as Computer Clerk in the Management of Tea Estate was served with the charge sheet dated 29. 7.1999 levying the charge of deliberately showing inflated figure of gross wages payable to the permanent workers. Be it stated here that at the time of issuanc e of the charge, the workman had put in 20 years of services without any blemish .

3. gesheet dated 29.7.1999 is as follows: The basic charge against the petitioner as leveled against him vide char (cid:28)You are alleged to have committed the following misconduct. It has come to the notice of the Management after scrutiny of the pay Book (Thanai Men Permanent- Two, Thanai Women Permanent-One & Billungoonie Men Permanent) for the period be tween 14/06/99 to 27/06/99 that you have deliberately and motivatedly shown and inflated figures of gross wages payable to permanent workers as follows: Pay Book Actual Amount e Thanai Men Permanent Two s. 4000/ Thanai Men Permanent One Dillungoonie Men Permanent (cid:28) 48732.00 (cid:28) 37738.00 Rs.55245.00 Inflated Amount Differenc Rs. 59249.00 R (cid:28) 52732.00 (cid:28) 47738.00 (cid:28) 4000/ (cid:28) 10000/ That as a result of such deliberate excess reflection of the total earnings show n by you the Company has suffered a loss of Rs. 18,000/ during the period under references. That you have willfully suppressed the printing out of the relevant of PAY ABSTR ACTS thus misleading the Management resulting in loss to the Management stated a bove. (cid:29)

4. It was alleged that by the aforesaid act, the workman and his accomplice s resorted to illegal personal gain. It was also alleged that scrutiny of the re cords was in progress and such conduct on the part of the workman amounted to ac t of theft, fraud and dishonesty. The workman was also asked to explain as to wh y the loss suffered by the management Tea Estate amounting to Rs. 18,000/- shoul d not be recovered from him. On receipt of the charge sheet, the workman submitted his Annexure-2 wri 5. tten statement of defence dated 3.8.1999 denying the charges leveled against him . In the written statement, the workman denied the allegation of misconduct on h is part. It was stated that responsible officer of the Tea Estate having approve d all the pay books with the figures shown therein and also having signed by the Assistant Manager and Sr. Manager of the Tea Estate, there was no question of s howing any inflated figures by the workman.

6. The workman in his written statement also contended that there could be some technical error arising out of certain defects in the computer itself, but the same could not have led to the inference that the workman was involved in an y theft, fraud and dishonesty. It was also stated the such charge was beyond his comprehension. The workman also stated in his written statement that had it bee n his intention to show inflated figures, he would have manipulated the things i n such a way that the same could not have been detected. The workman also pointe d out in his written statement that since the payment had made as per the approv al accorded by the higher authority, there was no question of any theft and/or m isappropriation. It was contended that he was made a scapegoat for the omission and commission made by the higher authority.

7. Being not satisfied with the show cause reply submitted by the workman, the management conducted an enquiry through an Enquiry Officer, who on conclusio n of the enquiry held the petitioner guilty of the charge. Thereafter, the manag ement concurring with the finding of the Enquiry Officer, dismissed the workman from service vide Annexure-3 order dated 18.12.1999. Consequent upon such dismis sal of the workman, industrial dispute was raised followed by conciliation proce eding, which resulted in failure. Thereafter the Government of Assam vide the af oresaid notification made the aforesaid reference to the Labour Court at Dibruga rh. The reference was registered and numbered as Reference No. 13/2000. On recei pt of the reference, the Labour Court issued notice to both the parties. On rece ipt of the notice, the parties appeared and filed their written statement. They also adduced evidences.

8. In the written statement filed on behalf of the workman, it was contende d that the workman was required to work on the computer by way of feeding the co mputer with the figures relating to earnings of worker as per the Ganti Book pre pared by Hazira Mhohorer. It was also contended that the figures that had been p rovided to him, he had entered into the Computer. Further statement made in the written statement was that some others had also operated the Computer.

9. In the written statement submitted by the Management Tea Estate, it was admitted that the figures were entered into the Computer from the Ganti Books. I t was also admitted that fortnightly statements for payment to the tea garden wo rkers were prepared by the Computer Clerk on the basis of the datas supplied to him by the Hazira Clerk. However, it was contended that the workman while prepar ing the computerized payment sheets deliberately changed the gross total of the pay books. The written statement further recorded that when internal auditor vis ited the company on 1.7.1999 and verified the records, it was detected that the pay books of the permanent workers were manipulated by way of changing total amo unt and in that way inflated total amount.

10. Learned Presiding Officer, Labour Court having answered the reference in favour of the management and against the workman, the petitioner filed the inst ant writ petition towards challenging the said award.

11. I have heard Ms. A. Bhattacharyaa, learned counsel for the petitioner as well as Mr. G.N. Sahewalla, learned Sr. Counsel assisted by Mr. K. Kalita, lear ned counsel appearing for the respondent/management. Referring to the evidence o n record, Ms. Bhattacharjee, learned counsel for the petitioner argued that the workman is a victim of the circumstances and that the learned Labour Court witho ut appreciating the evidene on record in its true prospective passed the impugne d award requiring interference of this Court. In support of her submission, she has placed reliance on three decisions reported in (1999) 2 SCC 143 (Savita Chem icals (P) Ltd. Vs. Dyes & Chemical Workers Union and Anr.); 2004 (1) GLJ 223 (Am rit Dewan Vs. Assam State Co-operative Marketing & Consumer Federation Ltd. & Or s.) and AIR 2002 SC 3030 (Sher Bahadur Vs. Union of India & Ors.).

12. Mr. G.N. Sahewalla, learned Sr. Counsel, representing the respondent man agement on the other hand, supporting the impugned award submitted that the evid ence on record being overwhelming to establish the charge against the workman, t he Writ Court will not sit on appeal over the findings recorded by the learned P residing Officer, Labour Court. He has also placed reliance on the decision of t he Apex Court reported in (2005) 8 SCC 428 (SBI Vs. K.C. Tharakan & Ors.). I have considered the submissions made by the learned counsel for the pa 13. rties. I have also perused the relevant records including the records received f rom the Labour Court. Upon giving my anxious consideration to the same my findin g and conclusion are as follows: The charge against the petitioner has been noted above. It was the plea 14. of the management that due to the inflation made in the pay books by the concern ed workman, there was excess payment of Rs. 18,000/- and consequently the manage ment suffered financial loss. As to what was the defence of the workman and asse rtion of the management have been noted above. Learned Labour Court on the basis of the pleadings framed the following issues for adjudication: (cid:28)(1) Whether the Computer was malfunctioning at the relevant time? (2) Whether the alleged pay books were prepared by the delinquent? (3) Whether total amount of the pay books were inflated by an amount of Rs. 10,0 00.00? (4) Whether the delinquent misappropriated the sum of Rs. 18,000.00? (cid:29)

15. Answering the issue No. 1, the learned Labour Court decided the issue ag ainst the workman on the ground that the workman did not make any endeavor to es tablish that the computer was not properly functioning. While answering the issu e No. 2 namely whether the alleged pay books were prepared by the delinquent, le arned Labour Court has held that the same were all prepared by the workman himse lf in the computer. While answering the issue in that manner, learned Presiding Officer has referred to the evidence adduced by one Sri Baljit Singh, Sr. Manage r of the Tea Estate (MW-2). Ext-16 pay book has also been referred to. According to MW-2, the document i.e. pay books were prepared by the workman in the comput er. Referring to the cross examination of the said witness, it has been held tha t he stuck to his deposition in chief and that the defence witness had admitted in his deposition that the documents from Ext-11 to 26 except Ext-23 were all pr epared by him.

16. I have carefully gone through the deposition made by MW-2 Shri Baljit Si ngh. He in his Deposition stated about audit party inspection and finding of inf lation in three labour pay books. He in his deposition in chief stated that the workman had shown inflated figures in the pay books. In the cross examination, t his witness categorically stated that the computer was operated by three persons . He also admitted that it was he, who had endorsed the pay books in which Ext-1 5 (A) is his signature. According to him at the time of signing of the documents , the anomalies were not brought to his notice. He also admitted that other work men made payments of wages. Detailing the procedure of preparation of pay books, this witness in this cross examination stated as to how ganti reports were chec ked by the computer clerk and thereafter check lists were prepared. Such checkli sts were sent to the Head Mohorer for verification. It was only after such verif ication, the checklists were returned to the computer clerk. Thereafter the docu ments were sent to the Assistant Manager, who signed the pay books every fortnig htly. This witness further stated in his cross examination that after observing such formalities he again put his signature after which the Head clerk prepared the checklists for payment.

17. MW-2 in his cross examination further stated that after the aforesaid pr ocedure, the concerned hazira mohorer collected money from the Head clerk and it was he who had disbursed the same to the workers. The categorical statement mad e by him in his cross examination is that the computer department does not disbu rse any amount. Learned Labour Court while answering the issue No. 2 in favour of the ma 18. nagement and against the workman only referred to part of the deposition of the MW-2 details of which have been discussed above. As per own statement of the MW- 2, the computer department was not responsible for the payment. When the payment s were made after so many formalities sending the pay books to different authori ties involving collective responsibility, in my considered opinion, the issue No . 2 could not have been answered attributing fault on the part of the workman.

19. The Division Bench of this Court in Girish Ch. Sarma Vs. BRPL reported i n 2006 (1) GLT 253 affirmed by the Apex Court reported in (2008) SC 1 GLT 5 (BRP L Vs. Girish Ch. Sarma) dealing with the principle relating collective responsib ility in the decision making process, held that the charge of fraud against the petitioner involved in the said case was misdirected for the reason that the app ellant alone was not entrusted with the particular responsibility and that the r esponsibility was with the team. As in the said case, in the instant case also, as disclosed by none other than MW-2 himself, it was a collective responsibility of the officers and the employees of the Tea estate and consequently the workma n alone could not have been picked up for the alleged loss.

20. Above apart, the MW-1 Shri Bhuban Ch. Goswami in his deposition while st ating about the domestic enquiry conducted by him stated in his cross examinatio n that he did not know as to whether the computer was operated by other workmen. He categorically admitted that the concerned workman did not make payment and t hat the Manager signed the pay books. The concerned workman examined himself as WW-1. He in his deposition sta 21. ted that he was initially appointed as Factory Typist and thereafter became the Computer Clerk. He further stated that in the domestic enquiry, the Enquiry Offi cer did not give him opportunity to cross examine the witnesses in a proper mann er. He also stated that none of the witnesses had deposited that he was responsi ble for the theft. He further stated that he was not involved in any financial d ealing.

22. Coming to the issue No. 3, the learned Presiding Officer, Labour Court w hile answering the same, falling back on the finding in respect of the issue No. 1 answered the same against the workman. While doing so, he simply relied upon the figures reflected in the pay books unmindful of the fact that the same were prepared on the basis of the figures furnished to the workman. MW-2 in his depos ition having stated about the detail procedure towards preparation of pay books coupled with approval of payment thereof, the learned Labour Court without discu ssing anything about the said procedure ought not to have attributed the purport ed inflation amounting to Rs. 18,000/- to the workman.

23. As regards the issue No. 4, whether the delinquent misappropriated the s um of Rs. 18,000/-, the learned Labour Court referring to the aforesaid evidence of MW-2 and attributing deliberate preparation of inflated bills has answered t he issue against the workman. It is nowhere in the evidence that the concerned w orkman prepared false bills for wrongful gain and loss to the company and yet th e learned Labour Court held the workman guilty of misappropriation of the sum of Rs. 18,000/-.

24. There is no nothing in the evidence to support that the workman was guil ty of the charge of theft, fraud, dishonesty and thus the finding recorded by th e learned Labour Court, in my considered view are perverse. It will be appropria te to discuss at this stage, the evidence adduced by MW-3 and MW-4. MW-3 in his cross examination categorically stated that the computer was handled by 4/5 pers ons and that in the pay books there is signature of the Manager. Be it stated he re that the MW-3 was in-charge of the computer.

25. MW-4 is the Sr. Assistant Manager of the Tea Estate. He in his cross exa mination admitted his signature in the pay books. He also stated that Hazira Moh orer did not point out anything regarding excess payment. The workman in his dep osition only stated about preparation of the pay books in the computer, but he d enied that there was any manipulation on his part.

26. To establish the charge of theft, fraud and dishonesty, the management w as required to establish that by making inflation deliberately in the pay books, the workman had gained something. There is absolutely no evidence, even to remo tely suggest that by such inflation, the workman had gained anything.

27. In Sabita Chemical (supra), the Apex Court held that when the finding of the Labour Court were patently erroneous and dehorse the factual and legal posi tion in record, interference would be called for exercising writ jurisdiction. S imilarly in Amrit Dewan (supra) dealing with the perversity of the enquiry repor t, it was held that the finding arrived at by the Enquiry Officer was liable to be interfered with. Same view has been expressed in Sher Bahadur (supra) dealing with sufficiency on evidence. It was held that mere statement by the Enquiry Of ficer in his report that (cid:28)in view of oral, documentary and circumstantial eviden ce as adduced in enquiry (cid:29) cannot in principle satisfy the rule of sufficiency of evidence. As discussed above, there is absolute no evidence to link the particu lar act of the workman as Computer Assistant with that of financial loss caused to the management. It is in this context, both the Division Bench of this Court and the Apex Court emphasized on collective responsibility in the case of Girish Ch. Sarma (supra).

28. The decision on which, the learned counsel for the respondent has placed reliance i.e. K.C. Tharakan (supra) is primarily to emphasis on the scope of in terference under Article 226 of the Constitution of India in Labour/Service matt er. The decision has also been pressed into service so as to emphasis that even in case of reinstatement in service, the workman is not entitled to any back wag es.

29. While there is no quarrel with the broad proposition of law that the Wri t Court is not to sit on appeal over the finding arrived at in the domestic enqu iry and/or by the Labour Court on the basis of the evidence on record and that t he Writ Court cannot re-appreciate the evidence the like an appellate authority, however, when on the face of it, there is mis-direction in appreciating evidenc e on record and/or non-application of mind in appreciating the same, the Writ Co urt cannot avoid its scope, power and jurisdiction under Article 226/227 of the Constitution of India. Law is well settled that in case of no evidence and/or pe rversity in finding, Writ Court can always interfere with the decision on the ba sis of the same. In the instant case, except the attribution that the workman wa s responsible for showing inflated rates in the pay books, there is no evidence whatsoever to establish any link of that inflation with that of theft, fraud and dishonesty attributed to the petitioner.

30. As noted above, evidences are overwhelming to show that ultimate payment was made with the approval of the higher authority and in between papers/docume nts went through various authorities. It is also on evidence that the workman ha d typed out the payment shits on the basis of the particulars/datas furnished to him. He did not do anything in his own and whatever he did was on the basis of the information furnished to him.

31. For all the aforesaid reasons, I am of the considered opinion that the w rit petition deserves to be allowed, which I accordingly do by setting aside and quashing the impugned award dated 23.10.2003 passed in Reference Case No. 13/20

32. This now leads us to the question as to whether upon reinstatement, the workman would be entitled to back wages. In the facts and circumstances involved in the case, I am of the considered opinion that the ends of justice would met if the workman is provided with 50% of the back wages. In addition, he will be e ntitled to continuity in service with all other consequential benefits as if he were in service all throughout.

33. Writ petition is allowed to the extent indicate above, without, however, any order as to costs.