Bhaskar Textile Mills Limited Vs. Presiding Officer, Industrial Tribunal and ors. - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - it is clearly established that there is no defect in the machine and no defect also is there in supplying the raw material and the connected processes. he would do well to keep in view the decisions referred by us above while disposing of the matter.r.n. misra, j.1. this is an application for a writ of certiorari by the employer challenging the order of the industrial tribunal dated 17-7-72, rejecting the application of the employer under section 33(2)(b) of the industrial disputes act of 1947 (hereinafter referred to as the act).2. the bhaskar textile mills limited carries on its operation at jharsuguda in the district of sambalpur and round the clock in three shifts the manufacturing process is engaged. the opposite party workman was working in the 3rd shift as a simplex tenter. he was charge-sheeted for deliberate negligence in duty. in the domestic enquiry charges were found to have been established. accordingly an application was made under section 33(2)(b) of the act for approval of the managements' action in dismissing the workman from employment.3. the industrial tribunal came to find that the domestic enquiry had been conducted fairly and properly and was also in accordance with the principles of natural justice. it, however, found that the conclusion drawn in the domestic enquiry that the low return by the workman was a result of deliberate activity was erroneous. accordingly it refused to accord approval to the action of the employer. this writ application is directed against the said order of the industrial tribunal.4. the material portion of the domestic enquiry report (annexure 4) may be extracted-on analysing the evidence recorded in the enquiry, it is noticed from the documentary evidence as produced by sri j.p. dheer that sri c. swain, the concerned workman has produced very low hanks in comparision with a and b shifts workers. it is clearly established that there is no defect in the machine and no defect also is there in supplying the raw material and the connected processes. it is only due to the inefficiency of the concerned person for which there is a loss to the company for his low production. further the production figures of 7 days of sri c. swain are very low in comparison with other workers. on these particular machines 9 and 10, another worker has produced normal production upto the mark, whereas sri c. swain, the concerned delinquent workman could not be able to produce the normal production. it seems that there is a deliberate action of sri c. swain, by producing very low hanks causing loss to the company. sri c. swain produced very low hanks not only for one day but continued for a period of 8 days. it amounts to a habit of doing things deliberately. it believes the statement of the complainant and on the basis of the documentary evidence, the charges are established and proved.5. the workman was charged in the following manner-(i) that you are in the habit of neglecting your duty and not working properly.(ii) also, you were producing less hanks in comparison with other shifts on machines nos. 9 and 10 without any valid reason subsequently which affects the ring frame production causing loss to the company.6. dealing with the jurisdiction of the tribunal in such a matter, the supreme court, in the case of lakshmi devi sugar mills ltd. v. pt. ram sarup : (1957)illj17sc , indicated.-.the tribunal before whom an application is made under that section has not been to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the conditions of employment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted. a prima facie case has to be made out by the employer for the lifting of such ban and the only jurisdiction which the tribunal has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice or victimisation....according to mr. mohanty for the petitioner, the tribunal did not find that the action of the employer was mala fide or the outcome of an attempt of victimisation. the domestic enquiry had been conducted in accordance with the natural justice and a reasonable conclusion had been reached keeping the evidence in view that the work-man's conduct suffered from deliberate negligence resulting in loss to the employer. from a set of facts found which are not disputed before us, the enquiring officer had drawn that inferential conclusion. mr. mohanty, therefore, contends that if the domestic enquiry was not vitiated for violation of natural justice and had been carried on properly, the conclusions of fact reached at the domestic enquiry were not to be tested by the tribunal as an appellate court. the test by the tribunal has to be in attempting to find out a prima facie case.7. that mere negligence cannot bring about the removal from service is conceded before us by mr. mohanty for the petitioner. according to him, however, the finding in the domestic enquiry was not mere negligence but deliberate negligence. mr. jagadeb ray appearing for the workman relied on a decision of the division bench of the madras high court, management of presidency talkies v. m.s. natarajan : (1968)iillj801mad . there the court indicated at length as to when negligence amounted to misconduct.8. on reading the impugned order of the tribunal, we are of the view that the distinction in law has not been taken into consideration and limits of jurisdiction of the tribunal in dealing with a matter of this type have also not been taken into account. we would accordingly quash the impugned order and require the tribunal to dispose of the application of the employer afresh. he would do well to keep in view the decisions referred by us above while disposing of the matter. no costs.b.k. ray, j.9. i agree.