The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) nos.36644, 19533, 19536, 19538, 37354 and 37355 of 2021 _____________________________ W.P.(C) no.36644 of 2021 Balaram Negi and others …. Petitioners -Versus- CGIT-cum-Labour Court, BBSR and another …. Opp. parties For Petitioners : Mr. B.B. Swain, Advocate Mr. T.K. Pattanayak, Advocate For Opp. Parties : Mr. P.K. Parhi, DSGI (O.P.no.1) Mr. Saswat Ku. Acharya, Advocate (O.P.no.2) W.P.(C) no.19533 of 2021 Upendra Kumar Sahu …. Petitioner -Versus- The CGIT-cum-Labour Court, Bhubaneswar and others …. Opp. Parties For Petitioner For Opp. Parties
Legal Reasoning
: Mr. Saswat Ku. Acharya, Advocate : Mr. Debasis Tripathy, CGC (O.P.no.1) Mr. B.B. Swain, Advocate (O.P.nos.3 and 4) Page 1 of 11 W.P.(C) no.19536 of 2021 Panchanan Pradhan …. Petitioner -Versus- The CGIT-cum-Labour Court, Bhubaneswar and others …. Opp. Parties For Petitioner For Opp. Parties : Mr. Saswat Ku. Acharya, Advocate : Mr. Debasis Tripathy, CGC (O.P.no.1) Mr. B.B.Swain, Advocate Mr. T.K. Pattanayak, (O.P. nos.3 and 4) W.P.(C) no.19538 of 2021 Krushna Chandra Dora …. Petitioner -Versus- The CGIT-cum-Labour Court, Bhubaneswar and others …. Opp. Parties For Petitioner For Opp. Parties : Mr. Saswat Ku. Acharya, Advocate : Mr. Debasis Tripathy, CGC (O.P.no.1) Mr. B.B. Swain, Advocate (O.P. nos.3 to 14 W.P.(C) no.37354 of 2021 Arjun Biswal and others …. Petitioners -Versus- The CGIT-cum-Labour Court, Bhubaneswar and another …. Opp. Parties W.P.(C) nos. 36644, 19533, 19536, 19538, 37354 and 37355 of 2021 Page 2 of 11 For Petitioners For Opp. Parties : Mr. B.B.Swain, Advocate : Mr. P.K. Parhi, DSGI (O.P.no.1) W.P.(C) no.37355 of 2021 Balkrishna Bhoi @ Balakrushna Bhoi and others …. Petitioners -Versus- CGIT-cum-Labour Court, BBSR and another …. Opp. Parties For Petitioners : Mr. B.B. Swain Mr. T.K. Pattanayak, Advocate For Opp. Parties : Mr. P.K. Parhi, DSGI (O.P.no.1) CORAM: JUSTICE ARINDAM SINHA JUSTICE M.S. SAHOO J U D G M E N T --------------------------------------------------------------------------- Dates of hearing: 4th April, 2023, 5th February, 2024 and 14th March, 2024 Date of Judgment : 14th March, 2024 -------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Mr. Acharya, learned advocate appears on behalf of three contractors, who had jointly held enquiry proceeding W.P.(C) nos. 36644, 19533, 19536, 19538, 37354 and 37355 of 2021 Page 3 of 11 against opposite parties (workmen) regarding arson and violence occurred on 22nd April, 2006 consequent to a labourer meeting with a fatal accident during shunting of wagons with locomotive engine. 2. There was a criminal proceeding initiated as well. It resulted in conviction of the charge sheeted persons, who included the workmen, parties to the writ petitions. The conviction was by the Assistant Sessions Judge on judgment dated 2nd May, 2011. The convicted preferred criminal appeal to the Court of District and Sessions Judge. By judgment dated 28th December, 2013 there was reversal and acquittal. Prima facie it appears from the appellate judgment, the Court found inconsistency in the oral testimony as reason to hold that the prosecution had not come clean and therefore benefit of doubt was given to the convicted. 3. Mr. Acharya submits, by impugned award dated 18th December, 2020 the Labour Court-cum-Central Government Industrial Tribunal decided against his clients regarding, inter alia, fairness of the inquiry and thereafter went on to award W.P.(C) nos. 36644, 19533, 19536, 19538, 37354 and 37355 of 2021 Page 4 of 11 compensation in lieu of reinstatement and back wages to the workmen. He wants to rely on authorities to demonstrate that acquittal in the criminal proceeding has no bearing regarding departmental proceeding. Furthermore, according to the Tribunal there was omission by the management to disclose the enquiry file coupled with the technical defect of joint enquiry instead of three separate enquiries. 4. He draws attention to complaint dated 23rd April, 2006 made by one Balakrushna Bhoi. It be mentioned here, complainant was witness (WW1) in the Tribunal. It appears from the complaint, while the deceased workman was involved in shunting of railway wagons, he came between two wagons to be compressed and thereby received fatal injuries causing death. News of it led to widespread violence and arson. The disciplinary proceeding, resulting in award of punishment and challenge thereto were dealt with by impugned award. The contractors are before us. The workmen have also challenged the award on not having got direction for reinstatement. W.P.(C) nos. 36644, 19533, 19536, 19538, 37354 and 37355 of 2021 Page 5 of 11 5. Mr. Pattanayak and Mr. Swain, learned advocates
Decision
respectively appear for the workmen in the writ petitions filed by the contractors and in support of the writ petitions filed by their clients. Mr. Pattanayak submits, there should be no interference with impugned award because of uncontroverted testimony of WW1. Petitioners had earlier moved this Court by writ petition, disposed of with direction for the managements to participate in the proceeding before the Tribunal. In spite thereof, they chose not to appear. In the circumstances, oral evidence given by WW1 was unchallenged and correctly relied upon by the Tribunal to find that the enquiry was illegal. He submits, the writ petitions be dismissed. 6. The Tribunal reference records are available. Petitioners urge that the departmental proceeding was fair. The two reasons given by the Tribunal, to term the enquiry as unfair, are both perverse. Contention is that the enquiry records being exhibit-A in the proceeding and available, they were not looked into by the Tribunal. Reliance on purported oral evidence of unfairness of the enquiry was illegal. W.P.(C) nos. 36644, 19533, 19536, 19538, 37354 and 37355 of 2021 Page 6 of 11 7. We reproduce below deposition of the examination of WW1 (Balakrushna Bhoi). It was recorded on 8th March, 2017. “1. That I am the General Secretary of Dungri Khani Mazdoor Sangha, Dungri and authorized to swear this affidavit. 2. That the enquiry officer in the disciplinary proceeding without following principles of natural justice conducted the enquiry. 3. That the enquiry conducted is totally biased one. The enquiry officer the management submitted the report. The decision taken by the management is not proper and against the procedure of law. 4. That the deponent employees are poor workers and for their trade union activities, in a vindictive way decision has been taken by the management. That the contents of this affidavit are all true to the best of my knowledge and belief. Further examination in chief of W.W. No.1 continues on S.A. today i.e. on 08.03.2017. I have filed my statement in the form of sworn affidavit, which was prepared and drafted at my instance. I had gone through it and finding the same to W.P.(C) nos. 36644, 19533, 19536, 19538, 37354 and 37355 of 2021 Page 7 of 11 be correct. I have signed my sworn affidavit in this case. I have no documents to mark as exhibits. CROSS EXAMINATION :- Deems to be declined as the Management is absent.” (emphasis supplied) It appears, as submitted by Mr. Pattanayak, there was remand and WW1 again filed evidence on affidavit dated 9th August, 2019. We reproduce paragraph-6 from the affidavit. “6. That, the enquiry officer conducted the enquiry without following the principle of Natural Justice. The documents submitted by the management have not been supplied to the Workmen. During the period, the contractors should have submitted their valid licences under the Contractor Labour (R & A) Act, 1970.” Deposition recorded on 13th August, 2019 is also reproduced below. “I have filed my examination in chief in form of sworn affidavit as per order 18 Rule 4 C.P.C. The same was prepared and drafted as per my say. I have gone through the same and found the same correct. Hence, I have signed the sworn affidavit. W.P.(C) nos. 36644, 19533, 19536, 19538, 37354 and 37355 of 2021 Page 8 of 11 Ext. 1 is the letter dated 11.03.2006 to the R.L.C.(Central) regarding fulfillment of the Demands of the 2nd Party Workmen. Ext.2 is the letter of R.L.C. (Central) dated 10.04.2006 regarding conciliation. Cross examination :- Presumed to be declined as the Management found absent on repeated calls. Dictated & corrected by me.” 8. There is no dispute that the enquiry documents were tendered as exhibit-A in the Tribunal. It is clear from the evidence-in-chief adduced by WW1, reproduced above, the assertions are at best submissions before the Tribunal that the enquiry was unfair and made without following principles of natural justice. The Tribunal, in the circumstances, was obliged to look into the enquiry documents tendered and exhibited. It is of no matter that the assertion by evidence of affidavit, of unfair enquiry, was not tested in cross-examination. We repeat, at best it was a submission and could not be taken as evidence of fact. Non-application of mind by the Tribunal is apparent in face of the award saying the managements had failed to bring W.P.(C) nos. 36644, 19533, 19536, 19538, 37354 and 37355 of 2021 Page 9 of 11 the enquiry proceeding file as a piece of evidence to establish that the enquiry was held in a fair and proper manner. 9. In view of aforesaid, we remand the issue to the Tribunal on setting aside the award in respect thereof. We make it clear that we have not looked into subsequent findings on merit because if petitioners (managements) are successful before the Tribunal on the restoration, the findings on merit will become irrelevant. We further make it clear, in event the Tribunal reiterates its decision on restoration, none of the parties will be prevented thereafter from seeking adjudication on merits because we have not done so in the present writ petitions. 10. The Tribunal is directed to expeditiously deal with the issue on restoration, preferably within three months from date. The Tribunal records be sent back. No unnecessary adjournment is to be granted. 11. Mr. Pattanayak points out from orders dated 8th July, 2021 and 25th October, 2021 that thereby the workmen have each received ₹1,25,000/- from the management. There was interim direction to pay ₹1,00,000/- against the compensation direction W.P.(C) nos. 36644, 19533, 19536, 19538, 37354 and 37355 of 2021 Page 10 of 11 and ₹25,000/- as litigation cost. Confusion arises because three writ petitions are by the workmen and their entitlement to litigation cost to prosecute, is a question to be answered. In the circumstances, we modify the interim orders to be that ₹1,25,000/- received by each of the workmen is against the compensation direction in impugned award, without prejudice. The Tribunal will make appropriate direction in respect thereof upon dealing with the case on restoration, if necessary. 12. The writ petitions are disposed of. (Arindam Sinha) Judge (M.S. Sahoo) Judge Jyostna/Gs Signature Not Verified Digitally Signed Signed by: GAGAN BIHARI SAMAL Reason: Authentication Location: ohc Date: 15-Mar-2024 12:51:01 W.P.(C) nos. 36644, 19533, 19536, 19538, 37354 and 37355 of 2021 Page 11 of 11