Calcutta High Court (Appellete Side)
Puspita Majumder & Ors vs The Institution Of Engineers ... on 18 April, 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice T. S. Sivagnanam
and
The Hon'ble Justice Hiranmay Bhattacharyya
FMA 254 of 2019
With
I.A. CAN 3 of 2021
Gautam Majumder (since deceased) represented by
Puspita Majumder & ors.
Vs.
The Institution of Engineers (India) & ors.
For the Appellants : Mr. Rananeesh Guta Thakurta,
Ms. Senjuti Sengupta .......... Advocates
For the Respondents : Mr. Soumya Majumder,
Mr. Asit De,
Ms. Sormi Dutta, .........Advocates
Heard on : 02.03.2022
Judgment on : 18.04.2022
Hiranmay Bhattacharyya, J.:-
1. The instant appeal is at the instance of the respondent no. 3
in the writ petition and is directed against an order dated
August 10, 2018 passed by a learned Single Judge in WP
25115 (W) of 2017. By the order impugned the order of the
learned Tribunal setting aside the order of dismissal was set
aside. The writ petitioner/the Institute was directed to pay Rs.
3 lakhs to the appellant.
2. The appellant was employed under the Institution of Engineers
(India) (for short "the Institution"). The appellant was guilty of
being a habitual absentee. His service was terminated on 31st
December, 2003. In June, 2006 the workman collected
employment experience certificate as well as provident fund
dues. Long thereafter, sometimes in December, 2008 he made
a representation to the conciliation officer purporting to raise
an industrial dispute. The workman applied under Section
10(1B) of the Industrial Disputes Act, 1947 challenging the
order of termination and prayed for reinstatement along with
back wages.
3. The Labour Court, by an order dated July 28, 2014 found the
domestic enquiry to have been improper and invalidated the
same by setting aside the enquiry report. Thereafter, evidences
were led by the parties and the Labour Court passed the
award dated December 30, 2016 directing reinstatement in
service with 50% back wages and other consequential benefits.
The said order was the subject matter before the Writ Court.
4. By the order impugned the learned Writ Court set aside the
award passed by the Labour Court and directed the writ
petitioner to pay monetary compensation to the appellant
herein. Being aggrieved the respondent no. 3 in the writ
petition preferred the instant appeal.
5. The learned Counsel for the appellant contended that the
learned Writ Court ought not to have set aside the award
passed by the fact finding forum. He contended that the scope
of interference by a Writ Court in exercise of its power of
judicial review is very limited. He, further, submitted that the
earlier writ petition being WP no. 8140 (W) of 2015 filed by the
present writ petitioner was dismissed and the contention of
the appellant was upheld in the said writ petition. He, further,
submitted that the order dated June 8, 2015 passed on the
earlier writ petition attained finality and as such the
grievances raised by the writ petitioner in the instant writ
petition was barred by res judicata.
6. Mr. Majumder appearing for the writ petitioner/respondent
submitted that the findings in the award are perverse. He
submitted that the appellant was dismissed on the ground
that he was a habitual absentee. He submitted that the
workman was allowed to resume duty and for maintaining
correct record of duration of service adjustment of leave due to
the delinquent was made. He submitted that such action on
the part of the writ petitioner could not be construed to be
grant of leave.
7. The learned Single Judge after taking into consideration the
deposition of the workman in cross examination before the
Labour Court on July 28, 2016 rightly observed that the
workman before the Labour Court admitted that he did not
avail of the opportunity to show cause. The learned Single
Judge after considering the documentary evidences on record
arrived at a finding that the said documentary evidence go to
show that the workman has been allowed to resume his duties
in employment. The learned Single Judge rightly applied the
ratio of the judgments of the Hon'ble Supreme Court in
Madhya Pradesh vs. Harihar Gopal reported in 1969 SLR 274
(SC) and State of Punjab vs. Bakshish Singh reported at (1998)
8 SCC 222 and held that the purport of exhibited documents
are neither sanction nor grant of leave to the workman but
were only for maintaining a correct record of the duration of
service and adjustment of leave to delinquent employee.
8. On the question regarding that the instant writ petition was
barred by the principles of res judicata, the learned Single
Judge after going through the issues involved in the earlier
writ petition as well as issues involved in the writ petition held
that the issue involved in the earlier writ petition was whether
disciplinary proceedings were duly conducted against the
workman. The learned Single Judge rightly observed that any
other observations which are not relevant to the decision on
that issue cannot be said to be binding upon the parties in the
instant writ petition so as to attract the bar of res judicata.
The learned Single Judge further held that the findings of the
learned Tribunal are perverse as the same were based on no
evidence. Though the scope of interference by a Writ Court in
exercise of powers of judicial review is limited but it is well
settled that in case the findings of the Tribunal are perverse or
there has been a violation of principles of natural justice, the
Writ Court can interfere with such findings in exercise of its
powers of judicial review.
9. This Court, thus, finds no reasons to interfere with the
findings of the learned Single Judge in so far as setting aside
of the award passed by the Labour Court is concerned.
However, considering the length of service rendered by the
original appellant, this court feels that the monetary
compensation directed to be paid by the learned Single Judge
should be enhanced.
10. During the pendency of the instant appeal the original appellant
left for heavenly abode on September 6, 2020. His widow is
prosecuting the instant appeal after being substituted in place
and stead of her deceased husband. More than three and a half
years have elapsed since the learned Single Judge directed the
monetary compensation to be paid but has not yet been paid.
11. In course of hearing of this appeal, the court made a request to
the respondent to suggest a particular figure of monetary
compensation which will be inclusive of all claims Mr.
Majumder, learned advocate for the Institution placed on record
a communication dated 24.01.2022 wherein it is stated that the
said Institution is agreeable to pay a sum of Rs. 3,50,000/-.
However, taking note of the above factual position and the
length of service rendered by original appellant this court is of
the considered view that the amount of monetary compensation
directed to be paid by the learned Single Judge is to be
enhanced to meet the ends of justice. This Court is also
informed that the other substituted heirs of the deceased
original appellant are his sons who are majors and will not
claim any share in the monetary compensation and the
compensation will be enjoyed only by the widow. In view thereof
we deem fit and proper to enhance the compensation to Rs.
5,00,000/- (Rupees Five Lakhs) only. We accordingly direct that
the respondent no. 1 shall pay a sum of Rs. 5,00,000/-
(Rupees Five Lakhs) only to the widow of the deceased original
appellant namely Pushpita Majumder in full and final
settlement towards the claim of the original appellant. In
addition thereto, the Institution shall also release the sum
which is lying to the credit of the original appellant with the
respondent no. 1 Institution in favour of Pushpita Majumder
who is the widow of the original appellant. The amount as per
the direction of this court shall be paid within a period of 8
weeks from the date of this order.
12. The impugned order is modified only to the extent as indicated
above. The instant appeal accordingly stands disposed of. There
shall be, however, no order as to costs.
13. Urgent photostat certified copies, if applied for, be supplied to
the parties upon compliance of all formalities.
I agree.
(T.S. Sivagnanam, J.) (Hiranmay Bhattacharyya, J.)
(P.A.- Sanchita)
