Judgment:
B.K. Sharma, J.
1. The Labour Court award upholding the decision of the Management to terminate the services of the workman is the challeznge made in this writ petition by the Labour Union representing the workman.
2. The petitioner in the name and style 'Assam Chah Karmachari Sangha', Nazira Circle in the district of Sibsagar is a registered Trade Union under Trade Union Act, 1926. Its workman Sri S.N. Choubey was its Unit Secretary at the relevant point of time. According to the petitioner, the Management of the Tea Estate, namely Sibbari Tea Estate, has victimized the said workman for his union activities. In this connection, the petitioner has referred to the certain demands made by the petitioner through the said workman on 24.4.1996.
3. By Annexure-1 letter dated 13.8.1996, the said workman was charged with the Annexure-1-A charges reproduced below:
To
Respected Manager,
Shree Sibbari Tea Estate
Sir,
In reference to your letter dated 24.7.96, I had forwarded my letter that which I would like to repeat again through this letter that I have been signing the daily Attendance Register. But Sri S.N. Choubey of Karmachari Sangha had 3truck off my signature dated 15.7.96 himself in my presence. Even though I was signing the Attendance Register, I stroke out my signatures of these 3 days on 18.7.96 when I was compelled to do so. Sri S.N. Choubey, Secretary of the Karmachari Sangha called me out of my house on 19.7.96 at 7.00 P.M. garden time and accordingly when I reached the place, he got the chowkidar to open the office and advised me to strike out my signatures dated 16th, 17th and 18th in his presence. And on his advice, I struck out my signatures illegally without thinking of any consequences. Since I was compelled to strike out my signatures, I am not guilt for my act. Therefore, your Honour may take necessary action after making enquiry into the matter. This is my humble prayer before your Honour.
Yours faithfullySd/- Putu Hussain BoraSibbari Tea Estate2.8.96.
4. On receipt of the said letter alongwith the charges as contained in Annexure-1-A, the workman submitted his reply to the same on 20.8.1996, which is also reproduced below:
To
The Manager, Shree Sibbari T.E.
Shree Sibbari T.E. 20.8.96
Sir,
I beg to acknowledge the receipt of your letter dated 13.8.96 together with one photo copy of the letter dated 2.8.96 of Md. P.H. Borah.
At the outset I am surprised of see the contents of the letter of Md. P.H. Borah dated 2.8.96. I must say that Sri Borah has not stated the true picture.
As requested by you I beg to state that the ACKS, Sibbari Unit have demanded to provide 'Specific Printed Attendance Register' for the members daily signature and for that you were requested. Since you have not taken any step to provide specific printed attendance register so the members of staff have decided not to sign in plain loose paper as their attendance. This was also intimated to you.
Since I am the Unit ACKS Secretary, so many members of staff have complained me that when all other members have not signed, Md. P.H. Borah who is the Unit Asst. Secretary has signed in the attendance paper. So on receipt of this complaint I enquired for Mr. Borah on 19.7.96 if it is a fact that he has signed. Md. Borah said that he has signed because all others have signed. To prove this it is correct that Md. P. H. Borah and myself went to the office and see the signatures. When it is seen that none have signed accept Md. Borah then Md. Borah has himself struck off his signature in my presence. I have never advised Md. Borah to struck off his signature. It is quite falls that I have struck off his signature.
This is for favour of your information.
Yours faithfullySd/- S.N. Choubey20.8.96.
5. On receipt of the reply, the Management of the Tea Estate, being not satisfied with the same, formally decided to frame charge against the workman as reflected in Annexure-3A statement of charges dated 30.9.1996 forwarded by Annexure-3 letter of the same date. By the said letter, the decision of the Management to place the petitioner under suspension with effect from 30.9.1996 was also conveyed. The twofold charge against the petitioner as could be gathered from the statement of charges are that of criminal trespass in to the office of the Tea Estate exercising influence of the position of the workman over the Chowkidar and compelling another workman to strike off of the signatures put by him in the attendance registr on 16th, 7th and 18th of July, 1996. It was alleged that such action on the part of the workman amounted to gross misconduct. For a ready reference the statement of charges is reproduced below:
That on 19.07.96 at about 7.00 P.M. (Garden time) you asked Putu Hussain Bora to come from his home and then you illegally and unauthorisedly unlocked the office of the Tea Estate exercising you influence over the garden Chowkidar Sri Dhaneswar and then you committed criminal trespass into the office of the garden with Putu Hussain Bora and you also struck all signatures and thereafter you have criminally compelled Putu Hussain Bora to struck off the signature dated 16th, 17th and 18th July, 1996 from the daily Attendance Register and in this way you have damaged the valuable Daily Attendance Register of the garden. Your such acts of criminal trespass, mischief amounts to gross misconduct and hence this charge of gross misconduct.
6. In response to the aforesaid statement of charges, the workman by his Annexure-4 letter dated 7.10.1996, reiterated his stand in the reply to the Annexure-1-A charges by his Annexure-2 letter dated 20.8.1996, quoted above.
7. After the aforesaid framing of charge against the workman and his reply thereto, the Management conducted a domestic enquiry and the charge having been established in the domestic enquiry, the workman was dismissed from service by Annexure-5 letter dated 22.4.1997. In the letter, the final settlement dues for the services rendered by the workman and receivable by him were also indicated.
8. Being aggrieved by such dismissal of the workman from service, an industrial dispute was raised, upon which, conciliation proceeding etc. were also held and upon failure of the same, the reference notified vide Annexure-6 notification dated 4.12.1998 was made to the Labour Court, on the following issues.
1. Whether the Management of Shree Sibbari Tea Estate is justified in dismissing Sri S.N. Choubey from the service of the company w.e.f. 22.4.97?
2. If not, whether Sri S.N. Choubey is entitled to re-instatement with full back wages?
3. If not, what relief Sri S.N. Choubey is entitled to?
9. The aforesaid reference was registered in the Labour Court as Reference Case No. 17/1999. Both the parties appeared before the Court and filed their respective written statements and also adduced their evidences. The Labour Court by its impugned award dated 21.1.2002 having held that the Management was justified in terminating the services of the workman, the petitioner has invoked the writ jurisdiction of this Court for setting aside and quashing of the same. Grounds urged towards the same are that the domestic enquiry was conducted in a most improper manner for which, even the Labour Court had to reject the same with the decision to examine the matter on merit on the basis of the evidences adduced by the parties; the finding of the Labour Court is perverse and not tenable in Law; the charges against the workman are all vague and self contradictory; the particular Register in reference to which the charges were framed did not contain all the required particulars and relevant entries etc. The basic contention of the petitioner is that the charge of entering the office beyond office hours is not tenable inasmuch as whenever any necessity arises the employees are entitled to enter into the office even beyond office hours and that the workman himself did not take any active part in striking out the signatures put by the co-employee in the attendance register marking his presence on the days.
10. I have heard Mrs. A. Bhattacharyya, learned Counsel for the petitioner as well as Mr. G.P. Bhowmik, learned Counsel representing the respondent management. I have also gone through the records of the Court below. The basic thrust of argument of Mrs. Bhattacharyya is that, apart from the punishment of dismissal from service being disproportionate considering the long length of service rendered by the workman, there being no role on the part of the workman towards striking out the signatures of the co-employee from the attendance register, the workman cannot be said to be guilty of any misconduct and as such the findings arrived at by the Labour Court is utterly perverse.
11. Mr. G.R. Bhowmik, learned Counsel representing the respondent/management upon a reference to the evidence on record submitted that since the charge against the petitioner has been established, there is nothing wrong in the findings arrived by the Labour Court. As regards the punishment of dismissal awarded to the workman, he submitted that in the given facts and circumstances, the penalty cannot be said to be disproportionate to the gravity of the misconduct. He has also placed reliance on the decisions of the Apex Court as reported in : (2006)IIILLJ232SC (Divisional Controller, N.E.K.R.T.C. v. H. Amaresh) : (2006)ILLJ826SC (T.N.C.S. Corpn. Ltd. v. K. Meerabai) and : (2001)ILLJ1156SC (Ramesh Kumar v. Engineer-in-Cheif Irrigation Deptt. Haryana).
12. The reply to the charges furnished by the workman vide Annexure-2 letter dated 20.8.1996 has been quoted above, which was reiterated by the workman when the formal statement of charge was issued to him. From the reply itself, it will be seen that the workman alongwith the co-workman Sri P.H. Borah had gone to the office on the particular date. The workman did not deny the fact of entering the office beyond office hours. However, his plea was that he had gone to the office alongwith said Sri Borah, which according to him was to verify, as to whether Sri Borah, who incidentally was the Unit Assistant Secretary, in fact, had signed the attendance register on the given dates, while the others did not. According to the workman, Sri Borah himself struck off his signatures in the attendance register and there was no advice on the part of the workman to do so.
13. In the written statement submitted in the Reference proceeding, there was no denial of the charges levelled against the workman. Only contention was that the workman had been victimized for his union activities and that the findings recorded in the domestic enquiry were all perverse and beyond the evidence on record.
14. As noted above, there were basically two charges against the workman, first one of which is that of illegally and unauthorisedly unlocking and entering into the office beyond office hours exercising the position of the workman as the Unit Secretary and thereby committing criminal trespass. The second charge is mat of compelling Sri Borah to strike off his signatures in the attendance register for the days involved. It was alleged that such act on the part of the workman amounted to gross misconduct. Even if, the second charge of compelling Sri Bora to strike off his signatures in the attendance register, which the workman denied, is ignored, the charge of criminal trespass into the office is a serious one, which the workman himself admitted. However, his plea is that such entry into the office beyond office hours, whenever necessity arises, is a normal affair. Such plea of the workman will have to be considered in the given fact situation coupled with the charges levelled against him.
15. From the materials on record, what has transpired is that there was some resentment relating to the format of the attendance register and as a mark of protest, a decision was taken by the union not to put signatures to mark presence in the attendance register provided. However, their own Assistant Secretary said Sri Borah put his signatures on the given dates i.e. 16th, 17th and 18th July, 1996. There is no denial that on 19th July, 1996, the workman accompanied by said Sri Borah entered into the office beyond office hours. This was materialized exercising influence as the Unit Secretary over the Chowkidar of the office. That itself constituted misconduct on the part of the workman. It was none of his business to enter into the office beyond the office hours without any permission of the authority.
16. The aforesaid conduct on the part of the workman necessarily relates to the second part of the charge, which the workman has denied. According to the charge, the workman exerted pressure on his colleague said Sri Borah to strike off the signatures put by him in the attendance register on the given dates. It is the case of the workman that although he had accompanied Sri Borah, but he did not advice him to strike off his signatures. If that be so, then the question necessarily arises as to what for the workman had gone to the office and that too beyond the office hours and entered into the same by unlocking the office through the Chowkidar. Both the charges are interlinked and will have to be understood in the given context, making a reference to one another.
17. The Labour Court on the basis of the evidences on record has held that the charge against the workman having been established, the Management was justified in terminating his services. MW 1, in his deposition categorically stated that the workman came to the office on 19th July, 1996 at about 7.00 P.M. and asked the Chowkidar to open the office. Sri P.H. Borah accompanied him. According to his statement, it was the workman, who brought out the attendance register and asked Sri Borah to strike out his signatures. He further stated that upon enquiry from the Chowkidar, he was informed that the office was unlocked upon insistence of the workman. This witness could not be dislodged during cross examination.
18. MW 2 is Sri P.H. Borah, in his deposition stated that the workman had asked him as to whether he had put his signatures in the attendance register or not. Having answered in the affirmative, the workman took him to the office on 19th July, 1996. It was the workman who asked the Chowkidar to open the door lock of the office. As per his statement, after entering the office, the workman brought out the attendance register and asked him to strike out the signatures put by him. This witness also stuck to his statement, during cross examination.
19. MW 3 is the Chowkidar, who stated about the fact of opening the office on being asked by the workman. According to him, the workman entered the office alongwith Sri Borah and remained there for about 5 minutes. No contradiction could be extracted from this witness also in the cross examination. MW 4 is the Inquiry Officer, who stated about the enquiry, and proved the enquiry proceeding. However, this witness is of little relevance since the Labour Court decided to proceed with the matter afresh and took evidence of both sides. MW 5, in his deposition proved the documents exhibited.
20. The workman examined himself as the WW 1. In his deposition, he has admitted of going to the office. According to him, it was Sri Borah, who had taken him to the office. He further stated that, it was said Sri Borah, who of his own struck off his signatures in the attendance register. In the cross examination, he denied that he applied any force on the Chowkidar and Sri Borah for opening the office and to strike out the signatures.
21. Evaluating and balancing the evidences on record, which included the own statement of the workman referred to above, the Labour Court has held that the charge against the workman has been established and as such the Management was justified in terminating the services of the wokman. Although, it is not for the Writ Court to sit on appeal over the evidence of the Labour Court and re-appreciate the same, however, the evidence on record has been referred to, in view of the submissions made by the learned Counsel for the petitioner that the findings arrived at by the Court below are utterly perverse. The evidences on record leave no manner of doubt that the charge against the workman containing both the elements about which discussions have been made above has been established. Even the first element of the charge namely unauthorized and illegal entry into the office amounting to criminal trespass having been established, same is so serious that the same would justify drastic action on the part of the Management to maintain office discipline among the workmen.
22. The second element of the charge will also have to be understood in the context of the first element. Even if it is assumed that, it was Sri Borah, who struck off his signatures in the attendance register, the question necessarily arises as to what was the business of the workman to accompany him to the office and that too beyond office hours. Once it is established and admitted by the workman himself that he had gone to the office alongwith Sri Borah and entered the same beyond office hours asking the Chowkidar to unlock the doors, the second limb of the charge automatically gets established. Otherwise, the workman would not have accompanied Sri Borah and remained with him till he departed from the office after striking out his signatures in the attendance register.
23. The decisions on which Mr. Bhowmik has placed reliance are all on the power of judicial review of the Writ Court, to interfere with penalty imposed on the workman by the Management. There is no gainsaying that in the matter of awarding punishment on the proved charge, the scope of judicial review is very limited. Sympathy or generosity as a factor is impermissible. Loss of confidence is the primary factor. In my considered view, there was nothing wrong in the Management losing confidence or faith in the workman and awarding the punishment of dismissal. The workman held a position of trust, where honesty and integrity were inbuilt requirements of functioning and, therefore, the matter required to be dealt with firmly with firm hands and not leniently. In the given fact situation, it cannot be said that the Management was not justified in terminating the services of the workman.
24. As per the standing orders (No. 18) governing the workmen, the penalty of dismissal/discharge may be imposed on any workman, who is found guilty of any acts of gross misconduct. Gross misconducts have been specified in standing order No. 16, which includes willful insubordination or disobedience, whether alone or in combination with another or others of any lawful and reasonable order of a superior; theft, fraud or dishonesty in connection with the company's business or property and willful destruction of or damage to garden property. The misconducts proved against the workman are that of criminal trespass to the office, criminally compelling the co-workman to strike out his signatures in the attendance register and damage to the daily attendance register. All these elements constituting the charge against the petitioner are very serious in nature and having constituted the gross misconducts under standing order No. 16, the Management was justified in terminating the services of the workman as per the penalties prescribed under standing order No. 18.
25. In view of the above, the submission made by the learned Counsel for the petitioner that the penalty is disproportionate to the gravity of the misconduct cannot be accepted being not well founded and deserves rejection. The net result of the above discussions would be that the decision rendered by the Labour Court must be accepted. The writ petition is dismissed without, however, any order as to costs.
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