W.C.L. Thr The Sub Area Manager, ... vs Santosh Kumar S/O Babulal Gupta ...
2017 Latest Caselaw 7747 Bom

                                                                                                                                LPA.2.10
                                                                       1


                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         BENCH AT NAGPUR, NAGPUR.
                                                    ...

                                    LETTERS PATENT APPEAL NO. 2/ 2010
                                                    IN
                                        WRIT PETITION NO. 3618/2008


            Western Coalfields Ltd.
            Through the Sub-Area Manager
            Rajur sub-Area, P.O. Rajur
            Tq.Wani, Dist.Yavatmal                                                    ..           APPELLANT

                        versus

1)          Santosh Kumar s/o Babulal Gupta
            Aged about 50 years
            R/o C/o Shri Babulal Gupta (Nema)
            Near UtpSheoni, Tq. & Dist. Sheoni (M.P.)

2)          Presiding Officer
            Central Govt, Industrial-cum-Labour Court
            Nagpur.                                                                                ..         RESPONDENTs

...............................................................................................................................................
            Mr. A.S. Mehadia, Advocate for the appellant
            None for the respondents
................................................................................................................................................

                                                                           CORAM: B.P. DHARAMDHIKARI &
                                                                                  MRS. SWAPNA JOSHI, JJ.

DATED: 3rd October, 2017

ORAL JUDGMENT: (PER B.P.DHARMADHUIKARI, J.)

1. The employer assails the judgment dated 9.9.2009 delivered by learned

single Judge, allowing Writ Petition No.3618/2008 filed by the respondent no.1-

workman. In this Letters Patent Appeal on 22nd March 2010 this Court granted interim

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stay to the operation and effect of the impugned judgment and that interim order has

been confirmed.

2. In this backdrop, we have heard Shri A.S.Mehadia, learned Advocate for

the appellant. Nobody has appeared for respondent nos.1 and 2.

3. Short contention of Advocate Mehadia is, apart from huge delay in

approaching the reference machinery under the Industrial Disputes Act ( in short "the

Act"), independently prejudice caused to employer has also also come on record,

inasmuch as the employer could not produce the records of departmental enquiry. He

further states that because of this failure departmental enquiry was found to be vitiated

and appellant led the evidence to substantiate the misconduct. Accepting that

evidence, the respondent no.2-Industrial Tribunal delivered the award in favour of the

appellant. It found the proceedings to be stale, misconduct established. The learned

Single Judge has taken a different view of same material and, thus, re-appreciated

the entire evidence which should not have been done in writ jurisdiction. It is further

submitted that making of alleged representations was not the reason for approaching

belatedly or for explaining the delay and hence delay ought not to have been

accepted in such a matter. As the misconduct has been proved by adducing evidence

before Industrial Court, the findings that charge-sheet was in English language and,

therefore, workman may not have understood it or then oral evidence adduced by

witnesses after 23 years in support of misconduct or abuses pointed out by them

could not have been cross-checked with any other material, are the reasons given by

the learned single Judge. These were not the contentions raised before the

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respondent no.2.

4. To point out how such a stale proceeding needs to be dealt with,

learned counsel for the appellant relies on the judgment of the Honble Apex Court in

the case of Reserve Bank of India vs. Gopinath Sharma and another, reported at

(2006) 6 SCC 221; and an order of this Court dated 24th June,2016 in Writ Petition

No.6232/2014.

5. To explain how misconduct as is involved in present matter needs to

be dealt with departmentally, he is relying upon the judgment of the Hon'ble Apex

Court, in the case of Mahindra and Mahindra Ltd. vs. N.B. Narawade, reported in

(2005) 3 SCC 143.

6. With assistance of Advocate Mehadia, we have looked into the relevant

papers. Perusal of the above award dated 21 st May,2008 delivered by the CGIT

reveals that following question was referred to it, under section 10(2A) of the Act:-

" Whether the action of the management of Rajur sub Area of Western Coalfields Ltd. in terminating Sh. Santosh Kumar Gupta S/o Babulal Gupta Cat. I Mazdoor from services is legal and justified? If not to what relief Sh.Gupta is entitled to?"

7. Perusal of award reveals assertions of workman in his statement of

claim. He joined employment as General Mazdoor in 1982 and worked upto 11.7.1984

when he was dismissed. He claims that he was taken back on same day and dismissal

order was therefore not served upon him. He also states that in his statement of

claim, he learnt about dismissal order after 1989.

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8. Narration of events by him shows that on 6.2.1984 he applied for a

loan of Rs. 2000/- and he was asked to sign the register without paying any amount

and, therefore, he approached the Management but he was driven out of the office with

threats that he would be made over to police. He was then served with the charge

sheet on 10.5.1984 and kept under suspension. He was not given any opportunity

in departmental enquiry and he repeatedly represented till 1989, but he was not taken

back. The respondents filed their written statement and CGIT notes that on 5.2.1984

workman at 11.00 am entered the office of Project Officer, Rajur Sub-Area and

misbehaved with him. He tried to blackmail the Project Officer stating that he would

publish some material regarding misappropriation and he also threatened to kill him.

Hence Departmental enquiry was initiated and after proper opportunity he was

dismissed on 11.7.1984. He approached the conciliation machinery on 21.7.1997 i.e.

almost after 13-years.

9. The CGIT has considered the aspect of delay and laches in paragraph

5 of its award. The workman gave reason of representations made by him and

promises extended to him. He filed about 14 representations in CGIT on 23.4.2007.

The CGIT observed that same were not copies at all and in the handwriting of

workman without any acknowledgment or any signature in token of it s receipt. It has

observed that such type of documents can be prepared at any time and were not

reliable. It has then also commented that even if one representation per year is

presumed, they could not help workman in justifying delay. The appropriate

government on earlier occasion, refused to refer the matter to CGIT and for reasons

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not on record, the said government changed its earlier decision. The CGIT also finds

that there was nothing on record to show any assurance or promise given to workman.

It also found absence of order of dismissal in enquiry papers. The workman did not

produce any document to show that he received dismissal order in1989. His affidavit-

evidence was also silent about it. He did not assign absence of service of termination

order as reason for belated approach. The Industrial Court could not understand how

the year 1989 was mentioned by him and what was the base for it. It has been looked

into the relevant citations and concluded on a ground of delay that reference was

liable to be dismissed but then proceed to record its reasons also on merits of the

controversy.

10. In the backdrop of these findings on facts, when the aspect of delay as

has been looked into by learned Single Judge is considered, the learned Single Judge

has found the Labour Court in error in not accepting the representations only because

of absence of acknowledgment of its service upon employer. It has noticed that these

documents (representations) were produced on 8.2.2008 and last document with said

list was dated 14.5.2001 and this was the letter written by District Legal Aid Officer,

Seoni (Madhya Pradesh) to Secretary, Labour Ministry, Government of India, New

Delhi. The learned Single Judge found that no acknowledgment was produced but

considering the nature of workman who was appointed as General Mazdoor and who

remained firm in cross-examination regarding those representations and claimed that

acknowledgments were never given to him, and absence of any challenge thereto,

the explanation furnished by workman for not obtaining the receipts could not have

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been rejected. It also took note of the fact that a total of 14 letters were produced by

him with list of documents dated 23.4.2007 and these letters were for a period from

13.5.1989 to 21.12.1998. These letters were again proved by workman. It therefore

accepted the fact that he made number of representations. It therefore also found that

he made number of representations and ultimately reached the right authority. It found

that he indulged in correspondence without understanding the exact authority for

ventilation of his grievance. The learned single Judge has taken note of letter dated

20.12.1989 sent as reminder to employer seeking information about workman with

reference to letter No.1242 dated 16/24th July,1989. The learned single Judge

observed that the grievance of workman was taken up for redressal on 14.5.2001.

The letter dated 14.5.2001 shows that from 1989 till 1999 the District Legal Aid

Committee, Seoni, made correspondence about the case of petitioner and District

Judge, Chandrapur was informed about it. It has then referred to another

communication dated 20/21st September, 2000 when Western Coalfields wrote a letter

to Section Officer, Ministry of Coal, New Delhi, informing about the case of petitioner.

All these has been looked in to conclude that mere delay as such could not have

been used to reject the claim of workman.

11. Perusal of judgment reported in Reserve Bank of India vs. Gopinath

Sharma and another, (supra) shows that there the Hon'ble Apex Court has looked

into precedents where delay of four years or seven years was found fatal. In paragraph

22 of this judgment, the Hon'ble Apex Court has also pointed out the settled principle

of 'no work for no pay.'

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12. The Division Bench of this Court in order dated 24th June 2016 while

allowing Writ Petition No.6232/2014 noted facts that after termination of services of

workman in that case on 15.7.1991, no steps were taken till 2012 and in 2012 for the

first time, be approached the Conciliation Officer.

13. The facts of matter at hand are quite different. Though workman was

dismissed in 1984 here, it appears that he made some correspondence and because

of that correspondence only the District Legal Aid Committee also sent some

communications to his employer and also to office of District Court at Chandrapur.

Because of these correspondence, the appellant-WCL also wrote to the Ministry of

Coal, New Delhi.

14. This material which has been looked into by learned Single Judge

does not find consideration in award delivered by Industrial Tribunal.

15. The Hon'ble Apex Court has, in the case of Ajaib Singh vs. Sirhind Co-

op. Marketing, reported at AIR 1999 SC 1354, held that mere delay or laches by

itself is not fatal in such matters. The employer has to prove that the situation has

become irreversible for it. This decision of Hon'ble Apex Court has been followed

recently, in the case of Raghubir Singh vs. Haryana Roadways, Hissar reported at

(2014) 10 SCC 301, by Hon'ble Apex Court only.

16. In the present case, the employer raised grounds of delay or laches

but then did not plead any prejudice. When the Industrial Tribunal asked the employer

to produce the records of departmental enquiry, even at that juncture, the employer

did not file any affidavit pointing out that due to lapse of time, records were destroyed.

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The learned single Judge has taken note of this sorry state of affairs also. The

employer could have then relied upon the provisions in Departmental Manual which

requires it to observe such records to be preserved for a particular number of years

and could have produced other records to show that departmental enquiry papers in

relation to present workman were destroyed, that has not been done.

17. In above judgments though Hon'ble Apex Court has found that delay

cannot be used to deny the relief and in such circumstances, the Hon'ble Apex Court

has permitted moulding of relief. It has observed that the Industrial Tribunal can in such

circumstances deny back wages.

18. Hence, it will be proper to look into the findings on misconduct as

recorded by learned Industrial Tribunal. In Paragraph 8 of its award, the Industrial

Court has mentioned evidence of then Project Officer Shri Barve. His evidence reveals

that workman entered his chamber demanding loan and on his refusal, started

threatening and abusing him in filthy words. The Industrial Court mentions that Shri

Barve told actual words employed by workman. The Security Guard and Clerks rushed

and took the workman forcibly out of chamber. The Industrial Court found that this

evidence is supported by one Shri Khond and Shri Kashyap who worked as Clerk and

Security Guard respectively. It has also come on record that despite opportunity of

cross-examination given to workman, the evidence of these persons has remained

unshaken.

19. When Shri Barve was examined by employer, he had already retired.

He earlier had no hostility against the workman and even after retirement he was not

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on cross-terms. The Industrial Tribunal observed that he therefore was disinterested

person. The Industrial Court in paragraph 9 after accepting this version has also

noticed that there was no reason for the workman to go to the chamber of Shri Barve

and story that his signature was obtained appeared to be apocryphal, afterthought

and baseless. It found that though workman claimed to be permanent, he could not

prove it and he had hardly worked for two years before his dismissal. In Paragraph 10

it has taken note of say of workman that his signature was obtained in register on the

revenue stamp for having received the amount though it was not paid. The Industrial

Court noticed that his own evidence reveals that it was his first approach for loan and

evidence tendered by employer reveals that workman had not applied for any loan at

all. The Industrial Court has found it difficult to believe that had the workman applied,

immediately on that day only, the loan could have been sanctioned and disbursed.

Thus, his entire entire story of attempting to avail the loan is not accepted by CGIT.

20. The learned single Judge has in paragraph 10 of his judgment,

considered the merits of the controversy. It has taken note of the limited jurisdiction

available to it under Article 226 of the Constitution of India, but then thought it proper

to dwell more as oral evidence was tendered before Industrial Court 23-years later

in absence of any previous background. Because of this reason only, it found it

necessary to interfere even on question of facts and appreciation of evidence. First

reason given by the learned single Judge to justify this course is inability to workman

to understand the English language. The charge sheet was in English language. The

stand of workman before Industrial Court does not show that he was not in a position

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to understand English language. He has not made any grievance about the language

of charge-sheet or of dismissal order. The learned single Judge has found that even if

workman did not raise any grievance about it, the High Court cannot ignore the

ground reality.

21. The learned single Judge was dealing with the matter in writ jurisdiction

and, as such, while recording a finding of fact, need of grant of opportunity to other

side to bring proper facts on record, in rebuttal, ought to have been first looked into.

As inability to understand English language was not the case of workman before

Industrial Court, the appellant-employer did not get any opportunity to show

otherwise or to bring on record the steps taken by it. Thus, lack of knowledge of

English is not a plain and simple question of law of which cognizance can be taken

for the first time in writ jurisdiction. It is absolutely a question of fact and hence this

appreciation and application of mind is unsustainable. In any case, when misconduct

is proved by leading evidence before Industrial Court where workman was represented

by an Advocate, this "language" factor was not material at all.

22. It has then looked into the charge of use of filthy language and abuses

hurled by workman at Project Officer. It found that in absence of any charge

regarding filthy language in charge-sheet, the petitioner could not have been held

guilty of that charge. It therefore found that only for abusing the Project Officer or

misbehaving with Project Officer, punishment of dismissal could not have been

inflicted. It has scanned the evidence of three witnesses, namely, S/Shri Barve,

Khond and Kashyap. It found that their affidavit-evidence mentioned actual filthy

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language ( abuses) in identical words i.e. in same manner without missing single word

or its sequence. It has then also found that "in earlier affidavits of S/Shri Khond and

Kashyap which were not present on 16.12.2007, there was no mention about filthy

abuses." It has found that those abuses given on 6.2.1984 were being brought on

record on 20.9.2007 and 15.11.2007 i.e almost after 15 years and appeared to be

exaggeration. Its consideration in paragraph 11 shows that while separating chaff

from grain, the only evidence of Shri Kishor Barve could have been relied upon. The

said evidence reveals workman entering the chamber of Shri Barve on 6.2.1984,

asking him to pay Rs. 2000/- as advance and threat that if amount is not paid the

workman would publish some objectionable material against Rajur Colliery or inform

Police Department. The learned single Judge found that this constituted only a minor

threat given in a sudden fit of anger by a labourer. Refusal by Shri Barve and threat

of dire consequences was not accepted because no police complaint was lodged or

then the matter was not reported to authorities immediately. The learned single Judge

found that such threats were not taken seriously and punishment was, therefore,

shockingly disproportionate.

23. The consideration of controversy by Industrial Court and appreciation

of evidence by it, has not been commented upon. The evidence of Shri Barve has been

looked into independently by learned single Judge. The Industrial Court has found

that Shri Barve was the highest officer at that place and Area Manager and Sub-

Manager were working under him. These Managers were dealing with administrative

work of sanctioning loan etc. There was no reason for workman to go to Shri Barve's

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chamber and his story that he wanted to complain against the Clerk because his

signature was obtained in some register, is found to be an afterthought and baseless.

The learned single Judge has overlooked this important piece of evidence. The

Project Officer was approached by workman and the learned single Judge accepts

the story of demand of Rs. 2000/- and threat given by workman to him. This conduct

has been found to be a misconduct of a minor or technical nature. In view of this

finding, the learned single Judge has relied upon the judgment of Hon'ble Apex Court,

in the case of Colour-Chem Limited vs. A.L. Alaspurkar, reported at (1998) Vol.2

SCC 192.

24. In this case even before the learned single Judge the conduct of

respondent needs to be looked into. The learned single Judge has taken note of

statement made by counsel for workman on 28.8.2009 that workman earlier indulged

in disturbing one and all, including the Court and, therefore, his two earlier Advocates

stopped appearing for him. Those two earlier Advocates were appointed by Legal

Aid and third Advocate who pointed out this aspect (Shri D.N.Kukday) was also

assigned the matter through the Legal Aid only. When the matter was going before

the learned single Judge and Advocate Kukday was arguing the matter workman

appeared and started showing some papers to learned single Judge with raised loud

voice. The learned single Judge instructed him to talk with Shri Kukday but he did

not mend his ways. The Security Guard of the Court was therefore required to

remove him out of Court.

25. In charge-sheet served upon the workman, earlier similar conduct

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also finds mention. The finding that misconduct on 6.2.1984 was of a minor nature

cannot be accepted in such circumstances. The highest authority in Colliery was

approached with a demand of Rs. 2000/- and threatening with publication of some

adverse material against the interest of Colliery. This is nothing but an attempt to

blackmail the management.

26. In this view of finding, it is apparent that above-mentioned judgment, in

the case of Colour-Chem Ltd. vs. A.L. Alaspurkar (supra) cannot have any application

in present facts. This ruling applies when the misconduct is of minor nature and for it

a shockingly disproportionate punishment is inflicted without considering past service

record. Ingredients of this entry require a look into relevant discipline and appeal

rules to find out categorization of misconduct, into major and minor one. There is no

such attempt in impugned judgment.

27. Workman claims that order of punishment served upon him on

11.7.1984 was taken back and he continued in service till 1989. He also claims that

he learnt about earlier dismissal in 1989. The claims are mutually inconsistent. He has

not proved these facts and also reference to respondent no.2-Tribunal and material

on record, militates with this claim.

28. Taking overall view of the matter, we are inclined to hold that learned

Industrial Court which has recorded the evidence of witnesses in support of

misconduct, was justified in holding that misconduct has been established.

29. It is therefore clear and as misconduct has been established, the order

of dismissal dated 11.7.1984 gets validated. The 'doctrine of relation back' applies

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and hence workman is not entitled to any relief.

30. Accordingly, we allow the Letters Patent Appeal. The judgment of

learned single Judge dated 9.9.2009 in Writ Petition No.3618/2008 is quashed and

set aside. The award dated 21st March 2008 in Reference No. CGIT/NGP/72/2001 is

hereby restored to that extent.

31. No costs.

                          JUDGE                          JUDGE
sahare