Employers in Relation to the Management of Lodna Area of Bccl Vs. their Workman - 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. - 4800 of 2006, whereby the learned single judge dismissed the writ petition holding that the award passed by the central government industrial tribunal, dhanbad is perfectly legal and valid. the management also failed to identify the medical papers, which they alleged to be fake medical papers. lack of devotion to duty is mentioned as the reason for the proposed action which was the subject-matter of the earlier proceedings as well. there can be no dispute that power under section 11-a has to be exercised judiciously and the interference is possible only when the tribunal is not satisfied with the findings and further concludes that punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. besides, the tribunal has to give reasons as to why it is not satisfied either with the findings or with the quantum of punishment and that such reason should not be fanciful or whimsical but there should be good reasons. 830, para 36): 36. the words 'in the course of adjudication proceeds, the tribunal is satisfied that the order of discharge or dismissal was not justified' clearly indicate that the tribunal is now clothed with the power of re-appraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman.m.y. eqbal, j.1. this appeal under clause 10 of the letters patent is directed against the judgment dated 7.9.2006 passed in w.p. (l) no. 4800 of 2006, whereby the learned single judge dismissed the writ petition holding that the award passed by the central government industrial tribunal, dhanbad is perfectly legal and valid.2. the facts of the case lie in a narrow compass.3. the concerned workman was trammer at lodna colliery under the appellant. the management issued a charge sheet dated 21.10.93 to the concerned workman seeking explanation for his absence without leave. the concerned workman submitted his explanation denying the charges brought against him. a departmental proceeding was initiated. on the basis of report of the enquiry officer, the management imposed him punishment by putting him in 'badli list'. in 1994 the management issued another charge sheet dated 19.10.94 alleging that the concerned workman produced fake medical documents at the time of first enquiry in support of his unauthorized absence. after holding the enquiry the management dismissed him from service. thereafter an industrial dispute was raised and dispute was referred to the tribunal for adjudication.whether the action of the management of lodna colliery of m/s b.c.c.l. in dismissing the services of shri ram sakal mali, trammer w.e.f. 4.11.1995 is justified? if not, to what relief is the concerned workman entitled4. it appears from the award that before taking up the matter for hearing the tribunal considered the fairness of the domestic enquiry and held that the domestic enquiry was fair and proper. subsequently the tribunal proceeded to decide as to whether the order of punishment of dismissal from service is just and proper. the tribunal considered the entire evidence and firstly held that on the same charges of unauthorized absence the workman was inflicted punishment of putting him in 'badli listt'. hence there could not have been further punishment for the same charges. the tribunal further found that in the departmental enquiry the management did not produce any officer of the vigilance department as witness nor even the complaint made by the vigilance department was produced before the enquiry officer. the management also failed to identify the medical papers, which they alleged to be fake medical papers. in spite of that the order of punishment of dismissal was passed by the management on the basis of the enquiry report. the tribunal, therefore, held that the order of dismissal of the workman from service was not justified. accordingly the management was directed to reinstate the concerned workman with 25% back wages.5. the management challenged the said award by filing a writ petition being wpl no. 4800/2006. learned single judge found that the tribunal discussed the facts, evidence and material on record in details and also considered that the allegation of the management for the fake medical certificates, could not be proved and there was no material to establish the charges against the petitioner. consequently the learned single judge affirmed the award and dismissed the writ petition. hence this appeal.6. mr. a.k. mehta, learned counsel appearing for the appellant management, assailed the impugned award and the impugned judgment passed by the learned single judge as being erroneous in law. learned counsel firstly submitted that the learned single judge has committed error of record in holding that there is no finding of the tribunal that the domestic enquiry was fair and proper, although the tribunal has categorically held that the domestic enquiry was fair and proper. learned counsel further submitted that when the domestic enquiry was held to be fair and proper, it was not open to the tribunal to re-appreciate the matter unless the punishment was shockingly disproportionate to the proved charges. learned counsel further submitted that in any view of the matter, the order of punishment ought not to have been interfered with by the tribunal and the learned single judge ought not to have affirmed the award. in this connection learned counsel relied upon the decision of the supreme court in the cases of u.p. state road transport corporation v. vinod kumar : (2008)illj676sc , west bokaro colliery tisco ltd) v. ram pravesh singh : (2009)illj220sc and divisional controller, n.e.k.r.t.c. v. h. amaresh : (2006)iiillj232sc .7. admittedly, the first charge-sheet was issued by the management on 21.10.1993 for his unauthorized absence. the concerned workman submitted his explanation and submitted medical certificate showing that because of ailment he could not attend the duty. however, a departmental inquiry was conducted and the inquiry officer did not rely upon the medical certificate and submitted inquiry report holding that his absence was unauthorized. on the basis of inquiry report, the management passed an order of punishment by putting him under 'badli-list'. in 1994, a second charge-sheet was issued on the basis of letters and complaint received from the vigilance department to the effect that the medical documents submitted by the workman on the earlier inquiry was fake. again a departmental inquiry was initiated. the workman submitted his reply. although the charges were not proved in as much as the complaints made by the vigilance or any other evidence not was adduced in evidence by the management in support of the charge that the medical papers were fake, the inquiry officer submitted his report and on the basis of that, the management issued an order of punishment dismissing the workman from service. it is worth to mention here that the earlier charge-sheet was issued under clause 26.1.1 of the certified standing order for unauthorized absence. the second charge-sheet was under clause 26.1.1, 26.1.12 and 26.1.20 in connection with giving false information regarding his unauthorized absence because the medical papers were fake. it is, therefore, evidently clear that the two charges were levelled regarding his absence from duty, for which he was earlier punished by demoting him and putting him in 'badli-list'. in other words, the management after having been dissatisfied with the medical certificates, has already punished the workman in the earlier departmental inquiry and, therefore, the second departmental inquiry for the same cause of action appears to be unjustified.8. in the case of ltd. governor, delhi and ors. v. high court narinder singh (2004) 13 s.c.c. 342, the second show cause notice was challenged by the petitioner who was constable in the delhi police subjected to disciplinary action for dereliction of duty which culminated in imposition of penalty of reduction of pay by one stage without cumulative effect. thereafter, the second show cause notice was issued after two years proposing removing his name from the promotion list to which he was brought under the rule. the tribunal quashed the second show cause notice and the matter went to the supreme court. their lordships observed:4. reading of the show-cause notice suggests as if it is in continuation of the departmental proceedings. lack of devotion to duty is mentioned as the reason for the proposed action which was the subject-matter of the earlier proceedings as well. the second proposed action based on the same cause of action proposing to deny promotion or reversion is contemplated under the impugned show-cause notice. second penalty based on the same cause of action would amount to double jeopardy. the tribunal was, therefore, right in law in annulling such an action. we are not expressing any opinion on the ambit or scope of any rule.9. in the instant case, the appellant-management in para-5 of the memo of appeal has admitted that in earlier departmental proceeding, the charges levelled against the appellant i.e. unauthorized absence, was proved and punishment was awarded by putting him in the list of badli-workman. in the matter of second charge which relates to the same cause of action, in our considered opinion, is unwarranted in law and will amount to double jeopardy.10. so far decision of the apex court relied upon by the appellant, there is no dispute with regard to law settled by the supreme court that punishment of removal/dismissal in case where employee found guilty of misappropriation of fund is appropriate punishment and the court should be reluctant to reduce the punishment of misplaced sympathy for a workman. in such case, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment.11. in the case of mavji c. lakum v. central bank of india (2008) 12 s.c.c. 726, the fact of the case was that the employee was in the service of respondent-bank as a peon. while in service, two charge-sheets came to be served upon the appellant and an inquiry was held against him and he was discharged from service. this resulted in an industrial dispute for which reference was made to the industrial tribunal. the industrial tribunal concluded that inquiry held against the appellant was just and proper, but charges proved against the appellant were not serious enough to warrant extreme punishment of discharge from service. the tribunal, therefore, substituted the punishment of discharge with punishment of withholding of one increment. the respondent-bank challenged the award of the tribunal by filing writ application which was allowed and the learned single judge of the high court held that once tribunal came to the conclusion that inquiry against the appellant was just and proper, the tribunal should not have interfered with the punishment. the appellant-employee preferred appeal before the division bench which was dismissed. allowing the appeal, the supreme court held:23. in this backdrop when we see unusually long judgment of the learned single judge, it comes out that the learned single judge held firstly that the tribunal had exceeded its powers vested in it under the provisions of section 11-a of the industrial disputes act. the learned judge, as regards, section 11-a, after quoting the same, observed:though the tribunal was equipped with the power to come to its own conclusion whether in a given case the imposition of punishment of discharge or dismissal from the service is justified. it is for that purpose that the tribunal is authorized to go into the evidence that has been adduced before the inquiry officer in details and find out whether the punishment of discharge or dismissal is commensurate with the nature of charges proved against the delinquent.so far the finding of the learned single judge appears to be correct. however, the whole thrust of the judgment has changed merely because the industrial tribunal had found the inquiry to be fair and proper. the learned judge seems to be of the opinion that if the inquiry is held to be fair and proper, then the industrial tribunal cannot go into the question of evidence or the quantum of punishment. we are afraid that is not the correct law. even if the inquiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed. that does not mean that the findings arrived at were essentially the correct findings. if the industrial tribunal comes to the conclusion that the findings could not be supported on the basis of the evidence given or further comes to the conclusion that the punishment given is shockingly disproportionate, the industrial tribunal would still be justified in re-appreciating the evidence and/or interfering with the quantum of punishment. there can be no dispute that power under section 11-a has to be exercised judiciously and the interference is possible only when the tribunal is not satisfied with the findings and further concludes that punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. besides, the tribunal has to give reasons as to why it is not satisfied either with the findings or with the quantum of punishment and that such reason should not be fanciful or whimsical but there should be good reasons.25. though the learned judge had discussed all the principles regarding the exercise of powers under section 11-a of the industrial disputes act as also the doctrine of proportionality and the wednesbury's principles, we are afraid the learned judge has not applied all these principles properly to the present case. the learned judge has quoted extensively from the celebrated decision of firestone tyre & rubber co. of india p. ltd. v. the management : (1973)illj278sc , however, the learned judges seems to have ignored the observations made in air para 32 of that decision where it is observed that (scc p. 830, para 36):36. ...the words 'in the course of adjudication proceeds, the tribunal is satisfied that the order of discharge or dismissal was not justified' clearly indicate that the tribunal is now clothed with the power of re-appraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. what was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the tribunal that the finding of misconduct is correct.... the tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct; but also to differ from the said finding if a proper case is made out.26. we are surprised at the following observations of the learned judge in para 7.1:nowhere during the course of the judgment the tribunal appears to have followed the aforesaid guidelines or the wednesbury test. when it was reappreciating evidence and on the strength of it, was reaching to different conclusions and ultimately it has substituted the punishment, it was incumbent upon it to follow aforesaid guidelines. it was only upon finding that the decision of the authority was illegal or that it was based on material not relevant or relevant material was not taken into consideration or that it was so unreasonable, that no prudent man could have reached to such decision or that it was disproportionate to the nature of the guilt held established so as to shock the judicial conscience, the tribunal could have substituted the penalty. the entire text of award of the tribunal does not indicate this.we are unable to agree with these observations.12. in the instant case, as noticed above, the tribunal found that in the departmental inquiry against the second charge of submission of fake medical papers, even complaint made by the vigilance was not produced. no witnesses were examined to prove that the medical papers were fake. in spite of that harsh punishment of dismissal from service was passed by the tribunal, notwithstanding the fact that the employee was earlier inflicted with punishment of demotion by putting him in the 'badli-list'. in our view, therefore, the award passed by the tribunal by quashing the order of dismissal from service and directing reinstatement with payment of 25% back wages is fully justified. learned single judge, therefore, rightly refused to interfere with the award passed by the tribunal.13. for the reasons aforesaid, there is no merit in this appeal which is, accordingly, dismissed.