Employers in Relation to the Management of Tata Steel Limited Vs. the Concerned Workman, D.P. Mitra - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - 11. in the present case, the learned tribunal is clearly in error in presuming that nonpayment of subsistence allowance had ipso facto rendered the inquiry / proceeding as unfair and improper.orderd.g.r. patnaik, j.1. prayer in this writ application has been made by the petitioner management of tata steel limited for quashing the findings recorded by the labour tribunal, vide its order dated 14.3.2008 in reference case no. 12 of 2002, whereby while deciding the preliminary issue regarding the fairness of the departmental inquiry against the respondent workman, the tribunal has held that the departmental inquiry was unfair and improper on the ground that subsistence allowance was not paid to the concerned workman.2. a preliminary objection in this writ application has been taken by the respondent workman on the ground that since the issue involved relates to the findings of the tribunal on the preliminary issue and the proceeding in reference case has not yet concluded nor a final finding have been given on the other related issues, the petitioner cannot invoke the writ jurisdiction of this court.3. facts of the case in brief is that a departmental inquiry was conducted against the respondent workman on the charge that while on duty, he was caught by the security personnel of the petitioner management in the act of committing theft of certain articles belonging to the company, which were recovered from his personal possession. on the imputation that he has committed theft of the company's property, which amounts to a misconduct, the workman was asked to submit his written statement in his defence and to face a departmental inquiry. during the pendency of the departmental proceeding, he was put under suspension.on concluding the inquiry, the inquiry officer had found the workman guilty of the charges. on the basis of the inquiry report, the disciplinary authority had imposed the punishment of terminating the workman's services.being aggrieved, the workman raised an industrial dispute. the dispute was referred by the government to the tribunal for adjudication on the following terms of reference:whether the dismissal of shri d.p. mitra, personal no. 113741, hot strip mill, tisco, jamshedpur by the management is justified? if not, what relief he is entitled to?4. on appearance of both the parties in the proceeding, and after receiving their respective written statements, the tribunal proceeded to decide on the preliminary issue as to whether the departmental inquiry conducted by the management against the workman, was fair and in accordance with the principles of natural justice? evidences on this issue, were adduced by both the parties. on considering the evidence, the tribunal recorded its findings that full opportunity was given to the workman to defend his case at the inquiry and that the workman had availed the opportunity of cross-examining all the material witnesses of the management and also to submit his own case through his witnesses in defence. the tribunal thus, did not find any infirmity in the manner in which the departmental inquiry was conducted against the workman, nor did it find any violation of the principles of natural justice in conducting the inquiry. yet, the tribunal had concluded that the domestic inquiry conducted by the inquiry officer was not fair and proper and that the inquiry report submitted by the inquiry officer is perverse. such a finding has been recorded only on the ground that the delinquent employee was not paid subsistence allowance during the entire period of inquiry.5. the petitioner has assailed the above findings of the court below on the ground that such finding is improper and without application of judicial mind and without considering the fact that the workman had never pleaded, nor adduced any evidence to the effect that he had suffered any prejudice in the departmental inquiry on account of non-payment of subsistence allowance.shri rajiv ranjan, learned counsel for the petitioner would submit that the learned tribunal has wrongly applied the obiter in the case of j.p. shukla v. state of u.p. (2007) 7 scc 90, since the facts of the case are totally in different context. learned counsel would explain that in the case of j.p. shukla (supra), the facts disclosed was that the delinquent employee was under medical treatment at kanpur from where he was transferred to gorakhpur to face departmental inquiry but he was not able to participate in the departmental inquiry against medical advise by undertaking journey from kanpur to gorakhpur due to non payment of substance allowance during the period of his suspension. learned counsel argues further that the learned tribunal has recorded its clear finding that the respondent employee was given full opportunity to defend his case in the domestic inquiry and he had availed the opportunity to the fullest extent and therefore, it cannot be said that he was deprived from participating in the departmental proceeding or that he had suffered any prejudice on account of non-payment of his substance allowance.learned counsel argues further that since the findings of the tribunal on the preliminary issue would tend to go at the root of the case, the findings of the tribunal as recorded in the impugned order, being perverse, needs to be interfered by this court in exercise of its writ jurisdiction.6. as observed above, the learned tribunal had, after considering the entire evidences on record, arrived at its findings that the workman was given full opportunity to defend his case at the departmental inquiry and that the workman had also availed the opportunity to the fullest extent and therefore, there was no impropriety in the manner in which the departmental inquiry was conducted against the workman.7. from the written statement submitted by the workman, it transpires that the workman had not raised any issue of having suffered any prejudice on account of non-payment of his subsistence allowance to him. it also appears that he has not led any evidence whatsoever on such an issue. yet, on the basis of the information given by the counsel for the workman in course of argument, that the workman was not paid his substance allowance, the tribunal at once arrived at the conclusion on the basis of the presumption that non-payment of subsistence allowance had ipso facto rendered the departmental inquiry as being not fair.8. in the case of indra bhanu gaur v. committee management of m.m. degree college and ors. : air2004sc248 , a similar issue of non-payment of subsistence allowance during the suspension period and its effect on the domestic inquiry, came up for consideration before the supreme court. in the facts of the case, the supreme court has held that unless prejudice was shown and established, the mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceeding in every case.9. in the instant case, as observed from the pleadings of the workman, no stand was taken before the inquiry officer or even before the tribunal that because of non-payment of substance allowance, he was in any way incapacitated or that he had suffered any prejudice in defending his case at the proceeding.10. as rightly pointed out by the learned counsel for the petitioner, the facts of the case in j.p. shukla's case (supra) is distinguishable from the facts of the instant case. the employee in the aforesaid case had not only specifically pleaded, but had also demonstrated that on account of non-payment of substance allowance, he was deprived of sufficient opportunity to defend the proceeding.11. in the present case, the learned tribunal is clearly in error in presuming that nonpayment of subsistence allowance had ipso facto rendered the inquiry / proceeding as unfair and improper.12. it is true that normally the writ court would not interfere with the decision of the industrial tribunal on the preliminary issue of validity of the domestic inquiry but when the decision is per say improper and perverse, in my opinion, it would not be improper to interfere in exercise of the writ jurisdiction.13. in the light of the above discussions, i find merit in this writ application and accordingly, the same is allowed. the impugned order dated 14.3.2008 passed in reference case no. 12 of 2002 is hereby set aside. the matter is however remitted back to the tribunal to decide the issue afresh after considering all the aspects of the case and after allowing the parties adequate opportunity of being heard.14. with this observation, this writ application is disposed of.

Judgment:
ORDER

D.G.R. Patnaik, J.

1. Prayer in this writ application has been made by the petitioner Management of Tata Steel Limited for quashing the findings recorded by the Labour Tribunal, vide its order dated 14.3.2008 in Reference Case No. 12 of 2002, whereby while deciding the preliminary issue regarding the fairness of the departmental inquiry against the respondent workman, the Tribunal has held that the departmental inquiry was unfair and improper on the ground that subsistence allowance was not paid to the concerned workman.

2. A preliminary objection in this writ application has been taken by the respondent workman on the ground that since the issue involved relates to the findings of the Tribunal on the preliminary issue and the proceeding in Reference Case has not yet concluded nor a final finding have been given on the other related issues, the petitioner cannot invoke the writ jurisdiction of this Court.

3. Facts of the case in brief is that a departmental inquiry was conducted against the respondent workman on the charge that while on duty, he was caught by the security personnel of the petitioner management in the act of committing theft of certain articles belonging to the company, which were recovered from his personal possession. On the imputation that he has committed theft of the company's property, which amounts to a misconduct, the workman was asked to submit his written statement in his defence and to face a departmental inquiry. During the pendency of the departmental proceeding, he was put under suspension.

On concluding the inquiry, the Inquiry Officer had found the workman guilty of the charges. On the basis of the Inquiry Report, the Disciplinary Authority had imposed the punishment of terminating the workman's services.

Being aggrieved, the workman raised an industrial dispute. The dispute was referred by the Government to the Tribunal for adjudication on the following terms of reference:

Whether the dismissal of Shri D.P. Mitra, Personal No. 113741, Hot Strip Mill, TISCO, Jamshedpur by the Management is justified? If not, what relief he is entitled to?

4. On appearance of both the parties in the proceeding, and after receiving their respective written statements, the Tribunal proceeded to decide on the preliminary issue as to whether the departmental inquiry conducted by the management against the workman, was fair and in accordance with the principles of natural justice? Evidences on this issue, were adduced by both the parties. On considering the evidence, the Tribunal recorded its findings that full opportunity was given to the workman to defend his case at the inquiry and that the workman had availed the opportunity of cross-examining all the material witnesses of the management and also to submit his own case through his witnesses in defence. The Tribunal thus, did not find any infirmity in the manner in which the departmental inquiry was conducted against the workman, nor did it find any violation of the principles of natural justice in conducting the inquiry. Yet, the Tribunal had concluded that the domestic inquiry conducted by the Inquiry Officer was not fair and proper and that the inquiry report submitted by the Inquiry Officer is perverse. Such a finding has been recorded only on the ground that the delinquent employee was not paid subsistence allowance during the entire period of inquiry.

5. The petitioner has assailed the above findings of the court below on the ground that such finding is improper and without application of judicial mind and without considering the fact that the workman had never pleaded, nor adduced any evidence to the effect that he had suffered any prejudice in the departmental inquiry on account of non-payment of subsistence allowance.

Shri Rajiv Ranjan, learned Counsel for the petitioner would submit that the learned Tribunal has wrongly applied the obiter in the case of J.P. Shukla v. State of U.P. (2007) 7 Scc 90, since the facts of the case are totally in different context. Learned Counsel would explain that in the case of J.P. Shukla (Supra), the facts disclosed was that the delinquent employee was under medical treatment at Kanpur from where he was transferred to Gorakhpur to face departmental inquiry but he was not able to participate in the departmental inquiry against medical advise by undertaking journey from Kanpur to Gorakhpur due to non payment of substance allowance during the period of his suspension. Learned Counsel argues further that the learned Tribunal has recorded its clear finding that the respondent employee was given full opportunity to defend his case in the domestic inquiry and he had availed the opportunity to the fullest extent and therefore, it cannot be said that he was deprived from participating in the departmental proceeding or that he had suffered any prejudice on account of non-payment of his substance allowance.

Learned Counsel argues further that since the findings of the Tribunal on the preliminary issue would tend to go at the root of the case, the findings of the Tribunal as recorded in the impugned order, being perverse, needs to be interfered by this Court in exercise of its writ jurisdiction.

6. As observed above, the learned Tribunal had, after considering the entire evidences on record, arrived at its findings that the workman was given full opportunity to defend his case at the departmental inquiry and that the workman had also availed the opportunity to the fullest extent and therefore, there was no impropriety in the manner in which the departmental inquiry was conducted against the workman.

7. From the written statement submitted by the workman, it transpires that the workman had not raised any issue of having suffered any prejudice on account of non-payment of his subsistence allowance to him. It also appears that he has not led any evidence whatsoever on such an issue. Yet, on the basis of the information given by the counsel for the workman in course of argument, that the workman was not paid his substance allowance, the Tribunal at once arrived at the conclusion on the basis of the presumption that non-payment of subsistence allowance had ipso facto rendered the departmental inquiry as being not fair.

8. In the case of Indra Bhanu Gaur v. Committee Management of M.M. Degree College and Ors. : AIR2004SC248 , a similar issue of non-payment of subsistence allowance during the suspension period and its effect on the domestic inquiry, came up for consideration before the Supreme Court. In the facts of the case, the Supreme Court has held that unless prejudice was shown and established, the mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceeding in every case.

9. In the instant case, as observed from the pleadings of the workman, no stand was taken before the Inquiry Officer or even before the Tribunal that because of non-payment of substance allowance, he was in any way incapacitated or that he had suffered any prejudice in defending his case at the proceeding.

10. As rightly pointed out by the learned Counsel for the petitioner, the facts of the case in J.P. Shukla's Case (Supra) is distinguishable from the facts of the instant case. The employee in the aforesaid case had not only specifically pleaded, but had also demonstrated that on account of non-payment of substance allowance, he was deprived of sufficient opportunity to defend the proceeding.

11. In the present case, the learned Tribunal is clearly in error in presuming that nonpayment of subsistence allowance had ipso facto rendered the inquiry / proceeding as unfair and improper.

12. It is true that normally the writ court would not interfere with the decision of the Industrial Tribunal on the preliminary issue of validity of the domestic inquiry but when the decision is per say improper and perverse, in my opinion, it would not be improper to interfere in exercise of the writ jurisdiction.

13. In the light of the above discussions, I find merit in this writ application and accordingly, the same is allowed. The impugned order dated 14.3.2008 passed in Reference Case No. 12 of 2002 is hereby set aside. The matter is however remitted back to the Tribunal to decide the issue afresh after considering all the aspects of the case and after allowing the parties adequate opportunity of being heard.

14. With this observation, this writ application is disposed of.