Rajkumar Gandhi and ors. Vs. First Labour Court and ors. - Court Judgment

Excerpt:
- orderdebasish kar gupta, j.1. the petitioner files this writ application challenging the award dated january 29, 1996 passed by the labour court, west bengal in case no. viii-c-161/88. by virtue of the above award the learned court below directed the firm of the petitioners to reinstate the respondent no. 3 with payment of 50% of the back wages.2. the petitioners are the partners of a firm, namely m/s. r.k. engineering corporation (hereinafter referred to as the said firm). the respondent no. 3 was working as a latheman in the said firm. the respondent no. 3 was convicted and sentenced to a fine of rs. 60 and in default to suffer simple imprisonment for six days with further direction to refund an amount of rs. 75 to the employees state insurance corporation within a month by an. order.....

Judgment:
ORDER

Debasish Kar Gupta, J.

1. The petitioner files this writ application challenging the award dated January 29, 1996 passed by the Labour Court, West Bengal in case No. VIII-C-161/88. By virtue of the above award the Learned Court below directed the firm of the petitioners to reinstate the respondent No. 3 with payment of 50% of the back wages.

2. The petitioners are the partners of a firm, namely M/s. R.K. Engineering Corporation (hereinafter referred to as the said firm). The respondent No. 3 was working as a Latheman in the said firm. The respondent No. 3 was convicted and sentenced to a fine of Rs. 60 and in default to suffer simple imprisonment for six days with further direction to refund an amount of Rs. 75 to the Employees State Insurance Corporation within a month by an. order dated December 16, 1985 passed by the Learned Additional Chief Judicial Magistrate, Sealdah.

3. The petitioner was served with a charge-sheet dated December 28, 1985 by the authority of the said firm. The petitioner denied the charges levelled against him in the above charge-sheet by submitting a reply dated January 2, 1986.

4. Subsequently, the authority of the said firm dropped the proceeding which had been initiated against the respondent No. 3 by issuing the above charge-sheet dated December 28, 1985.

5. Thereafter, the authority of the said firm issued a fresh charge-sheet dated January 20, 1986.Drawing of an amount of Rs. 75 fraudulently and dishonestly was the charge, levelled against him, because he had been convicted by the Learned Additional Chief Judicial Magistrate of Sealdah Court for the aforesaid charge. The respondent No. 3 submitted his reply dated January 3, 1991 to the above charge-sheet refuting the charge levelled against him. After receiving the above reply to the charge-sheet the authority of the said firm dismissed the respondent No. 3 without holding any enquiry to prove the charges. The respondent No. 3 made a representation to the Labour Commissioner, Government of West Bengal and ultimately a reference case being No. VIII-C-161-88 was initiated on the basis of a reference made under Section 10 read with Section 2-A of the Industrial Disputes Act, 1947. After hearing the parties the respondent No. 1 passed the impugned award dated January 29, 1996 with a direction upon the authority of the said firm to reinstate the petitioner as also to pay 50% back wages.

6. Appearing on behalf of the petitioners Mrs. Sukla Sinha, Learned Advocate, submits that the impugned award dated January 29, 1996 cannot be sustained in law in view of the fact that the inference drawn by the respondent No. 1 was not correct. According to the petitioners the order of dismissal from services was not passed against the respondent No. 3 with a view to victimise him. The respondent No. 3 suffered a conviction in a criminal proceeding and as such the only punishment which could be awarded to the respondent No. 3 in connection with the disciplinary proceeding in question was dismissal from services. The next submission of the Learned Counsel appearing for the petitioners is this the respondent No. 1 should not have taken into consideration the fact of dropping the first charge-sheet dated December 28, 1985. Because there was no bar and or impediment to drop that proceeding. It is further submitted by the Learned Counsel appearing for the petitioners that the said firm submitted a confidential report to the Employees State Insurance Corporation disclosing the fact of attendance of the respondent No. 3 in the office on a date which had been shown to the Employees State Insurance Corporation by the respondent No. 3 as on leave on the ground of sickness. That information was the basis of initiating the criminal proceeding against the respondent No. 3 by the Employees State Insurance Corporation. That cannot be said to be an arbitrary action on the part of the said firm. The Learned Counsel appearing for the petitioners finally submits that direction for payment of 50% back wages was given by the respondent No. 1 without considering the aspect of his alternative employment in any other establishment during the period in question.

7. The learned Counsel appearing for the petitioners relied upon the decision of Farid Hussain v. National Industrial Tribunal and Ors. 2005 (106) FLR 329 to submit that in view of conviction in a criminal proceeding, the only punishment which could be imposed upon the respondent No. 3 in connection with the disciplinary proceeding in question was dismissal from service. The Learned Counsel appearing for the petitioner relied upon the decision of Municipal Committee, Bahadurgarh v. Krishnan Behari and Ors. : [1996]2SCR827 , Engineering Laghu Udyog Employees' Union v. Judge, Labour Court & Industrial AIR 2004 SC 495 : 2004-I-LLJ-1105 and Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and Anr. 2000 SCC (L&S;) 601 : 2000 Lab IC 2326 in support of the above submissions.

8. None appears on behalf of any of the respondents in course of hearing. It reveals from the record that the respondent No. 3 filed an affidavit-in-opposition repeating and reiterating his stands which was taken before the respondent No. 1 in case No. VIII-C-161-88.

9. Having heard the learned Counsel appearing for the petitioners as also considering the facts and circumstances of the case, I find that admittedly the respondent No. 3 was; punished in criminal proceeding by an order dated December 16, 1985, passed by the learned Additional Chief Judicial Magistrate, Sealdah. It is not in dispute that the above criminal proceeding was initiated by the Employees State Insurance Corporation against the respondent No. 3. The basis of initiating the above proceeding was a secret information which had been received from the petitioner company. It is not in dispute that the above secret information purported that the respondent No. 3 had enjoyed benefit of his sickness from the Employees State Insurance Corporation in respect of a working date on which the respondent No. 3 had not been on leave. It is also not in dispute that the respondent No. 3 admitted in his reply to the charge-sheet (Annexure 'B' at page 27 to the writ petition) the fact of imposing punishment against him in the criminal proceeding. It further appears from the reply to the charge-sheet that the respondent No. 3 denied the other charges levelled against him. It is also an admitted fact that the respondent No. 3 was dismissed from the services without holding an enquiry proceeding in the matter. It is also not in dispute that the learned labour Court did not examine the question of alternative employment of the respondent No. 3 at the material point of time for passing the impugned 1 order of payment of 50% back wages to the respondent No. 3.

10. On the basis of the aforesaid facts and circumstances of this case this Court is to examine whether the impugned order of setting aside the order of dismissal is sustainable in law? Whether direction for payment of 50% back wages is sustainable in law?

11. With regard to the aforesaid first issue I find that the respondent No. 3 admitted in his reply to the charge-sheet the fact of imposing punishment against him in a criminal proceeding. But he refuted the other charges levelled against him in that charge-sheet. More so, the respondent No. 3 alleged before the learned labour Court that during the period of ailment while the respondent No. 3 had been under Employees State Insurance Corporation's treatment, the petitioners requested him to do an urgent job for the factory. According to the respondent No. 3, he expressed his inability. But ultimately he did the job to enable the petitioner firm to get rid of untoward situation. That date was shown in the record as on leave on the ground of sickness. According to the respondent No. 3, the petitioner firm compelled him to work when he was on medical leave and on the other hand lodged a complaint of enjoying undue medical benefit to the Employees State Insurance Corporation. It was disputed by the petitioner firm before the learned labour Court.

12. Therefore, I find the above disputed fact had nothing to do with the criminal, proceeding in which the respondent No. 3 was convicted. But in view of the above disputed fact, the order of dismissal of the respondent No. 3 could not be upheld by the learned labour Court in absence of enquiry proceeding.

13. Natural justice in relation to disciplinary proceeding means observance of procedural fairness for holding the delinquent employee guilty of misconduct and imposing punishment on him for such misconduct. In this regard the relevant portions of the decision of Rashlal Yadav (Dr) v. State of Bihar : (1994)5SCC267 are quoted below:

6. The concept of natural justice is not a static one but is an ever expanding concept. In the initial stages it was thought that it had only two elements, namely, (i) no one shall be a judge in his own cause and (ii) no one shall be condemned unheard. With the passage to time a third element was introduced, namely, of procedural reasonableness because the main objective of the requirement of rule of natural justice is to promote justice and prevent its, miscarriage. Therefore, when the legislature confers power in the State Government to be exercised in certain circumstances or eventualities, it would be right to presume that the legislature intends that the said power be exercised in the manner envisaged by the statute. If the statute confers drastic powers it goes without saying that such powers must be exercised in a proper and fair manner. Drastic substantive laws can be suffered only if they are fairly and reasonably applied. In order to ensure fair and reasonable application of such laws Courts have, over a period of time, devised Rules of fair procedure to avoid arbitrary exercise of such powers. True it is, the Rules of natural justice operate as checks on the freedom of administrative action and often prove time-consuming but that is the price one has to pay to ensure fairness in administrative action. And this fairness can be ensured by adherence to the expanded notion of rule of natural justice. Therefore, where a statute confers wide powers on an administrative authority coupled with wide discretion, the possibility of its arbitrary use can be controlled or checked by insisting on their being exercised in a manner which can be said to be procedurally fair. Rules of natural justice are, therefore, devised for ensuring fairness and promoting satisfactory decision making. Where the statute is silent and a contrary intention cannot be implied the requirement of the applicability of the rule of natural justice is read into it to ensure fairness and to protect the action from the charge of arbitrariness. Natural justice has thus secured a foothold to supplement enacted law by operating as an implied mandatory requirement thereby protecting it from the vice of arbitrariness. Courts presume this requirement in all its width as implied unless the enactment supplies indications to the contrary as in the present case. This Court in A.K. Kraipak v. Union of India : [1970]1SCR457 after referring to the observations in State of Orissa v. Dr. (Miss) Binapani Dei : (1967)IILLJ266SC observed as under: (SCC p.272, para 20) : (At p. 156 of AIR)

The aim of the Rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These Rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.

These observations make it clear that if the statute, expressly or by necessary implication omits the application of the rule of natural justice, the statute will not be invalidated for this omissions on the ground of arbitrariness.

14. In view of the above settled principles of law, I find no illegality in the decision making process of passing the impugned award to set aside the order of dismissal under reference.

15. But with regard to the direction for payment of back wages, I find that the learned labour Court did not examine the question of alternative employment of the respondent No. 3 at the material point of time.

16. With regard to the decisions of Farid Hussain v. National Industrial Tribunal and Ors. (supra), Municipal Committee, Bahadurgarh v. Krishnan Behari and Ors. (supra) and Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and Anr. (supra), I find that the facts of the case was not identical to that of the instant case. With regard to the decisions of Municipal Committee, Bahadurgarh v. Krishnan Behari and Ors. (supra), Engineering Laghu Udyog Employees' Union v. Judge, Labour Court & Industrial (supra), Syndicate Bank v. Genera Secretary, Syndicate Bank Staff Association and Anr. (supra), those were decided on the basis of altogether different facts and circumstances of those cases. Therefore, the decisions of those cases have no manner of application on the instant case.

17. In the above facts and circumstances the impugned award dated January 29, 1996 passed by the labour Court, West Bengal in case No. VIII-C-161/88 is set aside only in respect of direction for payment of 50% of the hack wages to be paid to the respondent No. 3.

18. The above case is remanded back to the Learned Labour Court to decide only the issue of payment of back wages in accordance with law expediciously and preferably within four months. The petitioners are directed to comply with the rest part of the impugned award by reinstating the respondent No. 1 within a month.

19. This writ application is, thus, disposed of.

20. There will be, however, no order as to costs.

21. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.