Gauhati High Court
The Workman Md. Saffauddin Ali vs The Management Of Koomtai Tea Estate And ... on 4 January, 2024
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/11
GAHC010004002012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1368/2012
THE WORKMAN MD. SAFFAUDDIN ALI
OF KOOMTAI TEA ESTATE, REP. BY THE SECY., ASSAM CHAH
KARMACHARI SANGHA, GOLAGHAT CIRCLE, PIN- 785621, DIST.-
GOLAGHAT, ASSAM.
VERSUS
THE MANAGEMENT OF KOOMTAI TEA ESTATE and ANR.
P.O.- BADLIPAR, PIN- 785611, DIST.- GOLAGHAT, ASSAM.
2:THE PRESIDING OFFICER
LABOUR COURT
DIBRUGARH- 786001
ASSAM
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT & ORDER
Advocate for the petitioner : Ms. A. Bhattacharya, Advocate
Advocate for respondents : Shri P. Das, Advocate.
Date of hearing : 04.01.2024
Date of judgment : 04.01.2024
Page No.# 2/11
The legality and validity of an Award dated 31.12.2010 passed by the
learned Labour Court of Assam at Dibrugarh in Reference Case No. 01/2007 is
the subject matter of this writ petition. By the impugned Award, the dismissal
order dated 07.01.2022 in respect of the workman concerned has been upheld.
2. Before going to the issue which has arisen for determination, it would be
convenient if the facts of the case are narrated in brief.
3. The petitioner - Workman Md. Saffauddin Ali was working as an Office
Clerk in the Koomtai Tea Estate, i.e., the respondent no. 1. On 19.07.2001, a
Charge Memo was issued to the said respondent which pertains to non deposit
of food-staff (ration money) to the labourers. The details of the period and the
amount involved have also been given in the said Charge Memo. It has also
been reflected that there have been earlier instances of similar nature and
accordingly the workman was directed to submit his response. By the said order,
the workman was also placed under suspension.
4. The aforesaid Charge Memo was replied to by the workman on 23.07.2001.
In the said reply, the workman has admitted his guilt of not depositing the
amount. He has however prayed for condoning his default and has cited certain
personal reasons for utilizing the money for such purpose.
5. The matter was enquired into and vide the order dated 07.01.2002, the
workman was dismissed from service. The dismissal order clearly reflects that
there was a domestic enquiry and there has been earlier instance which was
also documented in form of communication dated 21.02.2000.
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6. The aforesaid order of dismissal was raised as a dispute on behalf of the
workman by the Sangha by way of reference before the learned Labour Court of
Assam at Dibrugarh and accordingly the aforesaid Reference Case No. 01/2007
was registered.
7. Both the Sangha and the Management had filed written statements. The
Management had also filed additional written statement. The learned Labour
Court after initiation of the proceedings had recorded the evidence of the
workman and two numbers of Management witnesses, namely, one Bodhen Ch.
Bora and one Romendra Nath Baruah. After discussion of the materials, the
learned Labour Court had passed the Award dated 31.12.2010 whereby the
order of dismissal has been upheld. As indicated above, it is the legality and
correctness of the order which have been questioned by way of this writ
petition.
8. I have heard Ms. A. Bhattacharya, learned counsel for the petitioner
whereas the Management is represented by Shri P. Das, learned counsel. The
LCR which have been transmitted to this Court have also been carefully
perused.
9. Ms. Bhattacharya, the learned counsel has made the following submissions:
(i) The charge is not of misappropriation and the
expression of misappropriation has been incorrectly used.
(ii) The amount in question has been returned back
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and therefore there cannot arise any case of misappropriation at
all.
(iii) The penalty of dismissal is not only harsh but
disproportionate vis-a-vis the nature of the charge against the
petitioner.
10. The learned counsel for the petitioner has submitted that the amount in
question having been returned, there was no occasion for taking a decision of
imposing the severe penalty of dismissal and this aspect of the matter was not
taken into consideration by the learned Labour Court. The provisions of Section
11 A of the Industrial Tribunal Act, 1947 (herein after Act) has also been
referred to which gives jurisdictional power to the Labour Court / Industrial
Tribunal to make necessary change / amendments in the penalty in an
appropriate case.
11. The learned counsel has however clarified that long after the order of
dismissal, the petitioner has now been engaged as a TET Teacher and therefore
would not pray for any reinstatement. She however submits that if the dismissal
order is interfered with, appropriate orders for payment of back wages may be
passed in accordance with law.
12. In support of her submission, Ms. Bhattacharya, the learned counsel relies
upon the following case laws.
(i) The Workmen of M/S Firestone Tyre and
Page No.# 5/11
Rubber Co. of India (Pvt.) Ltd. Vs. The Management and
Ors. reported in (1973) 1 SCC 813.
(ii) Collector Singh vs. L.M.L. Limited Kanpur
reported in (2015) 2 SCC 410
13. In the landmark case of M/S Firestone Tyre (supra), the Hon'ble Supreme
Court has held as follows:
"32.
(1)...
(2)...
...
(9) Once the misconduct is proved either in the enquiry conducted by an
employer or by the evidence placed before a Tribunal for the first time,
punishment imposed cannot be interfered with by the Tribunal except in
cases where the punishment is so harsh as to suggest victimization.
(10)....
34. This will be a convenient stage to consider the contents of Section 11-
A. To invoke Section 11-A, it is necessary that an industrial dispute of the
type mentioned therein should have been referred to an Industrial
Tribunal for adjudiction. In the course of such adjudication, the Tribunal
has to be satisfied that the order of discharge or dismissal was not
justified. If it comes to such a conclusion, the Tribunal has to set aside
the order and direct reinstatement of the workman on such terms as it
thinks fit. The Tribunal has also power to give any other relief to the
workman including the imposing of a lesser punishment having due
regard to the circumstances. The proviso casts a duty on the Tribunal to
rely only on the materials on record and prohibits it from taking any fresh
evidence. Even a mere reading of the section, in our opinion, does
indicate that a change in the law, as laid down by this Court has been
effected. According to the workmen the entire law has been completely
altered; whereas according to the employers, a very minor change has
Page No.# 6/11
been effected giving power to the Tribunal only to alter the punishment,
after having held that the misconduct is proved. That is, according to the
employers, the Tribunal has a mere power to alter the punishment after it
holds that the misconduct is proved. The workmen, on the other hand,
claim that the law has been re-written."
14. In the case of Collector Singh (supra), the Hon'ble Supreme Court
examined the scope of powers under Section 11-A of the Act.
15. Ms. Bhattacharya, the learned counsel accordingly submits that appropriate
relief be granted to the petitioner by setting aside the Award of the learned
Labour Court and also interfering with the order of penalty of dismissal.
16. Per contra, Shri P. Das, the learned counsel for the respondent no. 1 -
Management has submitted that the charges against the petitioner are serious
and grave. He submits that the records of the proceedings would clearly show
that the petitioner has admitted his guilt. It is further submitted that offences of
similar nature were earlier committed by the petitioner which were condoned.
17. Shri Das, the learned counsel further submits that the domestic enquiry
was itself conducted by following the principles of natural justice and the
fairness of the domestic enquiry itself was upheld by the learned Labour Court.
He also submits that the charge was duly proved in the learned Labour Court by
two numbers of Management witnesses and the fairness of the procedure
adopted by the learned Labour Court has not been questioned in this writ
petition. He accordingly submits that no case for interference is made out and
accordingly the writ petition be dismissed.
Page No.# 7/11
18. The learned counsel for the Management has referred to the following
decisions in support of his argument.
(i) Managing Director, North-East Karnataka
Road Transport Corpn. Vs. K. Murti reported in (2006) 12
SCC 570;
(ii) U.P. State Road Transport Corporation vs.
Suresh Chand Sharma reported in (2010) 6 SCC 555;
(iii) U.P. State Road Transport Corporation vs.
Mohan Lal Gupta & Ors. reported in (2000) 9 SCC 521.
19. The aforesaid cases mainly relates to the charge of misappropriation which
the Hon'ble Supreme Court, in no uncertain terms have held such misconduct to
be grave in nature. In the case of Suresh Chand Sharma (supra) it has
further been held that in cases of misappropriation, the penalty of dismissal is
appropriate.
20. The rival contentions made by the learned counsel have been duly
considered and the materials placed before this Court have been duly examined.
21. The writ petition has not raised any issues with regard to the procedure
adopted either in the domestic enquiry or before the learned Labour Court. The
emphasis is mainly on the proportionality of the penalty imposed vis-a-vis the
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charges.
22. To appreciate the contentions raised on behalf of the petitioner, it would be
necessary to understand the nature of the charges and the response of the
workman.
23. The Charge Memo dated 19.07.2001 clearly reflects the charge of not
depositing the Ration Money and the details, including the period in question
have been clearly reflected in the said Charge Memo. The memo also mentions
that on an earlier occasion a charge sheet was issued on 21.02.2001 on similar
allegations which was leniently viewed and was closed with a warning to the
petitioner. What is more intriguing is the reply of the petitioner dated
23.07.2001. In the said reply, the petitioner has clearly admitted the charges of
not depositing the amount in question and has only prayed for condonation of
his misconduct. The order of dismissal dated 07.01.2002 is preceded by a
domestic enquiry wherein the earlier instance have also been taken into
consideration with reference to the Charge Sheet dated 21.02.2001.
24. The Court has also noted that such admission was not only confined in the
domestic enquiry but even in the written statement filed by the workman before
the learned Labour Court, there is a clear admission of the charge. For ready
reference, the averments made in paragraph 3 of the written statement dated
10.06.2008 is extracted herein below:
"3. That the workman has deposited the amount of Rs.10,000/- (Rupees
Ten Thousand) only in cash immediately on receipt of the Charge Sheet
Page No.# 9/11
dated 19.07.2001 and subsequently deposited Rs. 6000/- (Rupees Six
Thousand) only in cash after few days. And rest amount of Rs. 6000/-
(Rupees Six Thousand) only has recovered from his suspension pay as
prayed by the workman to recover from the pay with a prayer to excuse
for such lapses. But the workman has been dismissed without considering
the prayer."
25. Even in the writ petition, there is a specific pleading in paragraph 5 to the
following effect:
"3. That, accordingly the workman had deposited an amount of
Rs.10,000.00 (Rupees Ten Thousand) only in cash immediately on the
same day on which he received the Charge Sheet dated 19.07.2001 and
subsequently deposited another amount of Rs. 6000.00 only in cash after
few days and the workman prayed before the management to recover the
rest amount of Rs. 6000.00 from his subsistence allowance and thus the
workman deposited the entire amount that was alleged to have been
misappropriated by the workman."
26. The workman has clearly admitted that Rs. 10000/- was paid in cash
immediately on receipt of the Charge Sheet dated 19.07.2001 and subsequently
deposited Rs. 6000/-. He has also admitted that the balance of Rs. 6000/- has
been recovered from his pay.
27. It has been contended on behalf of the petitioner that the penalty of
dismissal is harsh and the charge is not of misappropriation. This Court is
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however unable to accept the said submission as misappropriation is not
necessary to be of permanent nature and the mere fact of depositing the
amount, that too, after receipt of the Charge Sheet will not obliterate the charge
of misappropriation. With regard to the proportionality of the penalty, this Court
takes into account the following factor.
(i) There is a clear admission of the misconduct by the
petitioner not only at the stage of domestic enquiry but also in the
written statement filed in the learned Labour Court and even in the
pleadings of this writ petition.
(ii) The fact that the misconduct was repeated has not
been denied by the petitioner.
(iii) The misconduct though would is of misappropriation
cannot be confined only to that as the same is concerning ration
money which is meant for the labourer of the tea estate.
(iv) Apart from the issue of integrity of the petitioner to
remain in service with the management, the hardships cause to the
labourers would also be an equally important factor, if not more.
28. The cases relied upon on behalf of the petitioner is mainly on the powers
and jurisdiction of a Labour Court under Section 11-A of the Act. In the instant
case, this Court is of the opinion that the conclusion reached by the learned
Labour Court is based on relevant factors and considerations and the Labour
Court being a court on facts, this Court would be loath to interfere with the
conclusion unless such conclusion is perverse or based on no evidence.
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29. In the case of K. Murti (supra) relief upon by the management, the
Hon'ble Supreme Court has also taken into consideration the history of previous
misconduct which is also applicable in the present case.
30. A contention has been raised on behalf of the petitioners that in view of
the present engagement of the petitioner, reinstatement may not be prayed for
and appropriate orders be passed for back wages. This Court is however of the
opinion that unless the order of dismissal which has been upheld by the learned
Labour Court is interfered with, there will be no occasion to issue any
subsequent directions. In any case, mere interference with an order of dismissal
/ removal would not automatically lead to a direction for payment of the back
wages and it would all depend on the facts and circumstances of a particular
case.
31. In view of the aforesaid facts and circumstances and the discussions made,
this Court is of the opinion that no case for interference is made out and
accordingly the writ petition is dismissed.
32. Let the records be send back forthwith.
JUDGE
Comparing Assistant
