Page No.# 1/25 vs The State Of Assam And 4 Ors
2025 Latest Caselaw 5102 Gua

Gauhati High Court

Page No.# 1/25 vs The State Of Assam And 4 Ors on 29 May, 2025

                                                                       Page No.# 1/25

GAHC010184962014




                                                                  2025:GAU-AS:7107

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : WP(C)/1981/2014

            THE MANAGEMENT OF ASSAM CO-OPERATIVE JUTE MILLS LTD.
            THE ASSAM CO-OPERATIVE JUTE MILL LTD., A REGISTERED CO-
            OPERATIVE SOCIETY, A GOVT. OF ASSAM ENTERPRISE, HAVING ITS
            OFFICE AT SILGHAT, P.O.- SILGHAT, DIST.- NAGAON, ASSAM, REP. BY ITS
            DY. MANAGER- P and A SRI GUNAMONI GOGOI.

            VERSUS

            THE STATE OF ASSAM AND 4 ORS
            REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM,
            LABOUR AND EMPLOYMENT DEPTT., DISPUR, GHY- 6.

            2:DY. SECY. TO THE GOVT. OF ASSAM
             LABOUR and EMPLOYMENT DEPTT.
             DISPUR GHY- 6.

            3:ASSTT. LABOUR COMMISSIONER NAGAON.

            4:PRASANTA BORA S/O- LT. HEMORAM BORA
             R/O VILL.- BORALIGAON P.O.- BORBHOGIA
             DIST.- NAGAON ASSAM.

            5:DILIP BAISHYA S/O- LT. SIDDHIRAM BAISHYA
            VILL.- ROBORBARI P.O.- SILGHAT
             DIST.- NAGAON ASSAM

Advocate for the Petitioner   : MR.A ROY, MR.M NATH,MR.S S DEY,MR.D P BORAH,MR.A
BHATTACHARJEE

Advocate for the Respondent : GA, ASSAM, ,MR.R BARUAH,MS.A VERMA,MR.B GOGOI,MR.

S D ROY,MR. A CHAMUAH,MRS. K BARPUZARI Page No.# 2/25

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

Date of hearing : 29.05.2025 Date of Judgment : 29.05.2025

Judgment & Order(ORAL)

Heard Mr. M. Nath, learned senior counsel, appearing on behalf of the petitioner Mill. Also heard by Mr. A. Chamuah, learned counsel, appearing on behalf of the Respondents No. 4 & 5.

2. The petitioner Mill by way of instituting the present proceeding, has challenged the validity of the award, dated 30.09.2013, passed by the learned Labour Court, Guwahati, in Reference Case No. 04/2010.

3. The facts, in brief, requisite for adjudication of the issue arising in the present proceeding is noticed as under:

The Respondents No. 4 & 5, herein, are workmen of the Assam Cooperative Jute Mills Ltd.(hereinafter referred to as the petitioner Mill). The said Mill is a registered cooperative Society and is a Government of Assam enterprise.

The workman Prasanta Bora, i.e. the respondent 4, herein, who was working as a weaver in the petitioner Mill, was assigned night shift duty on 19.06.2009. It is projected that on the said date, the Respondent No. 4 had reported for his work late, and when the shift in-charge had asked him about the reason for his such delay, an altercation ensued wherein the workman is Page No.# 3/25

alleged to have assaulted the said shift in-charge. The shift in-charge, accordingly, submitted a written complaint on the same day before the Deputy Manager(Production) of the petitioner Mill. Consequently, the Respondent No.

4 was seen to be placed under suspension. Thereafter, on 26.09.2009, a Show Cause Notice was issued to the Respondent No. 4, herein, alleging violation of the standing orders, basing on the complaint made by the shift in-charge. The Respondent No. 4 submitted his reply on 23.06.2009 to the Show Cause Notice, dated 26.09.2009, denying the allegations levelled against him. It was projected in the said reply by the Respondent No. 4 that the shift in-charge had used filthy language against him and by pressing his chest, had ordered him to go out of the mill, for which, he got infuriated and the shift in-charge having not removed his hand; the Respondent No. 4 had pushed the shift in- charge.

It is further projected that the Labour Union had condemned the behaviour of the Respondent No. 4. The reply submitted by the Respondent No. 4, herein, being found to be not satisfactory, a departmental enquiry was directed to be held and one Shri Kulendu Das(Technical Officer) of the petitioner Mill, was appointed as the enquiry officer.

It is seen that the enquiry officer on entering into the enquiry, had examined the Respondent No. 4. It is projected that the Respondent No. 4, in the enquiry, had admitted to the allegations levelled against him.

Accordingly, after examination of the Respondent No. 4, the enquiry was closed and an enquiry report, dated 01.07.2009, was submitted. The said enquiry report was furnished to the Respondent No. 4 and vide a second Show Cause Notice, dated 06.07.2009, requiring him to submit his representation Page No.# 4/25

against the same. On a representation being submitted by the Respondent No. 4 against the enquiry report, dated 01.07.2009; the competent authority proceeded vide order, dated 18.07.2009, to discharge the Respondent No. 4 from his service w.e.f. 27.07.2009. In the said order, dated 18.07.2009, it was further stipulated that the Respondent No. 4 would be granted only half salary/ wages for the period, he had remained under suspension.

The Respondent No. 5 who is also a workman in the petitioner Mill, had not reported for his duty on 01.09.2009. There being a reduction in the production of the petitioner Mill due to absence of a number of workers on the said day in the night shift, the Management of the petitioner Mill had constituted a team of 5(five) officials of the Mill including members of the Workers' Union to examine the reason of absence of workers who were residing in the adjacent localities. Accordingly, on the next day i.e. on 02.09.2009, the said team at around 6.30 p.m., visited the residence of the workers of the petitioner Mill, including the residence of Shri Dilip Baishya(Respondent No. 5, herein), to ascertain the reason for their absence.

It is projected that the Respondent No. 5 had misbehaved with the members of the team and had also charged towards the General Secretary of the Workers' Union, threatening him with dire consequences.

Faced with the above situation, the team reported the matter before the Management of the petitioner Mill. Accordingly, a Show Cause Notice, dated 09.09.2009, came to be issued to the Respondent No. 5. The Respondent No. 5, on 11.09.2009, submitted his reply in the matter denying the allegations levelled against him.

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A departmental enquiry was, thereafter, directed to be held against the Respondent No. 5 basing on the allegations levelled against him in this connection.

The enquiry officer in respect of the allegations levelled against the Respondent No. 5; during the enquiry, had examined only the Respondent No.

5. On conclusion of such examination of the Respondent No. 5, the enquiry was closed and the enquiry officer submitted his report on 30.09.2009 to the Management of the petitioner Mill. In the enquiry report, the Respondent No. 5 was found to be guilty of the allegations levelled against him.

A copy of the enquiry report was furnished to the Respondent No. 5 on 07.10.2009. On consideration of the enquiry report as well as the representation submitted against the same by the Respondent No. 5; the competent authority of the petitioner Mill proceeded to discharge the Respondent No. 5 from his service w.e.f. 20.10.2009.

On account of the orders passed towards discharging them from their services; the Respondents No. 4 and 5, herein, had filed a joint application before the Assistant Labour Commissioner, Nagaon, praying for their reinstatement in service. The said application was forwarded to the Secretary to the Government of Assam, Labour and Employment Department, who, in turn, referred the matter to the Labour Court vide Reference Letter No. GLR.265/2002/29, dated 17.06.2000, framing 2(two) issues for adjudication. On receipt of the said letter, a Reference Case No. 04/2010, was registered for adjudication before the learned Labour Court, Guwahati, Assam.

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During the proceedings before the learned Labour Court, the Management of the petitioner Mill adduced 5(five) witnesses in respect of the Respondent No. 4 and had brought on record, the show-cause notice issued to the Respondent No. 4, his reply thereto, the enquiry report, the second Show Cause Notice, the representation against the same preferred by the Respondent No. 4 and the order passed by the authority of the petitioner Mill towards discharging the Respondent No. 4 from his services.

In the same manner, with regard to the Respondent No. 5, the Management of the petitioner Mill had adduced 5(five) witnesses and had brought on record, all the materials leading to the issuance of the order of discharge of the Respondent No. 5 from his service.

The learned Labour Court, thereafter, on consideration of the matter, was pleased vide award, dated 30.09.2013, to decide the issues framed for consideration in favour of the Respondents No. 4 and 5. The learned Labour Court proceeded to hold that the dismissal of the Respondent Nos. 4 and 5, from their services, was without any rhyme, and/or, reason. The learned Labour Court further proceeded to hold that though it was accepted by the Management of the petitioner Mill that the Respondents No. 4 and 5 were guilty of remaining absent from their respective duty, the allegations levelled in this connection against the Respondents No. 4 and 5 did not justify their dismissal from service.

Basing on the said conclusion, the learned Labour Court proceeded to direct for reinstatement of the Respondents No. 4 and 5, herein, with full back wages and with further direction that if their reinstatement in service is not possible, in that case, they shall be compensated by paying sufficient Page No.# 7/25

compensation as the case may be in accordance with law.

It is to be noted that the said award was accepted by the Government vide Notification, dated 18.12.2013, in terms of the provisions of section 17(1) of the Industrial Disputes Act, 1947.

Being aggrieved, the petitioner Mill has instituted the present proceeding, assailing the said award, dated 30.09.2013.

4. Mr. Nath, learned senior counsel appearing for the petitioner Mill, has, at the outset, submitted that the learned Labour Court while proceeding to interfere with the penalties as imposed upon the Respondents No. 4 and 5, has not brought on record any material to justify such conclusion reached by it. Mr. Nath, learned senior counsel, by taking this Court through the depositions of the Respondents No. 4 and 5, herein, made in the domestic enquiry held, has submitted that the Respondent No. 4 had admitted to the allegations levelled against him categorically by stating that he had committed the offence. Mr. Nath, learned senior counsel, has further submitted that similarly, the Respondent No. 5, during his examination, had also not disputed the allegations levelled against the Respondent No. 5 and accordingly, the allegations levelled against him also has to be held to have been established in the enquiry so held in the matter. The learned senior counsel has submitted that the Respondents No. 4 and 5, herein, during the domestic enquiry held, were afforded with all requisite opportunities to defend their case.

5. Mr. Nath, learned senior counsel, has submitted that the enquiry reports were duly furnished to the Respondents No. 4 and 5, herein, and they were Page No.# 8/25

required to submit their respective replies in the matter. The learned senior counsel has further submitted that it is only after the representations were submitted by the Respondents No. 4 and 5, respectively, that the competent authority had proceeded to consider the matter and accordingly, a decision was arrived at basing on the materials coming on record in the enquiry, to discharge them from their services and the order, dated 18.07.2009(in case of Respondent No. 4) and the order, dated 19.10.2009 (in case of Respondent No. 5) came to be issued discharging them from their respective services.

6. Mr. Nath, learned senior counsel, has further submitted that the learned Labour Court while proceeding to reinstate the Respondents No. 4 & 5, herein, in their services, having also concluded that the fact that the Respondents No. 4 and 5 had not attended their duties in the manner required as alleged by the Management of the petitioner Mill, was accepted, however, it was held that the same did not justify their dismissal from services. It is the submission of Mr. Nath that what the learned Labour Court had concluded was that the penalties imposed upon the Respondents No. 4 & 5 was disproportionate to the allegations levelled against them and accordingly, the direction of the learned Labour Court in the award, dated 30.09.2013, for reinstatement of the Respondents No. 4 and 5 in their services with full-back wages, would not be sustainable.

7. Mr. Nath, learned senior counsel, has submitted that the Respondents No. 4 & 5 were intimated verbally about their reinstatement in their former position in the petitioner Mill, by requiring them to not insist for the back wages. However, the same was refused by the Respondents No. 4 & 5. The learned senior counsel has further submitted that in continuation of the efforts initiated by the petitioner Mill for reinstatement in service of the Respondents Page No.# 9/25

No. 4 & 5; communications, both dated 03.04.2017, came to be issued to the Respondents No. 4 & 5, and therein, they were offered employment in their former position in the petitioner Mill with the enhanced salary as on the date of issuance of the said communication along with all other benefits. However, it was made clear that following the law of principle of "no work no pay", no back wages would be given to the Respondents No. 4 & 5, in this regard, for the period for which, they had not rendered service. It is submitted by Mr. Nath, learned senior counsel, that in spite of the said efforts taken, the Respondents No. 4 & 5, herein, had not rejoined their services.

8. In the above premises, Mr. Nath, learned senior counsel for the petitioner Mill, has submitted that the award, dated 30.09.2013, passed by the learned Labour Court; would mandate an interference. The learned senior counsel has alternatively made a submission to the effect that in the event, this Court is of the view that the reinstatement of the Respondents No. 4 & 5, herein, in service, as directed by the learned Labour Court is to be maintained; this Court in the facts and circumstances existing in the matter, would be pleased to interfere with the said award to the extent of the back wages and direct that the Respondents No. 4 & 5 be permitted to be reinstated in their respective service without full back wages.

9. Per contra, Mr. Chamuah, learned counsel for the Respondents No. 4 & 5, herein, at the outset, has submitted that the domestic enquiry instituted against the Respondents No. 4 & 5, herein, having been found to be vitiated; the directions passed by the learned Labour Court for reinstatement of the Respondents No. 4 & 5 in their respective services along with full back wages, would not mandate any interference.

Page No.# 10/25

10. Mr. Chamuah, learned counsel for the Respondents No. 4 & 5, has submitted that the domestic enquiries were vitiated on the count that the enquiry officer had proceeded to draw his conclusions with regard to the allegations levelled against the Respondents No. 4 & 5 basing on their examination in the enquiry. The learned counsel by referring to the depositions of the Respondents No. 4 & 5, has further submitted that the materials coming on record, did not establish that the Respondents No. 4 & 5 had accepted the allegations levelled against them. The learned counsel has further submitted that the clarifications given in the matter by the Respondents No. 4 & 5, during their depositions in the enquiry against the allegations levelled against them, were not factored in by the enquiry officer while submitting his report and the competent authority of the petitioner Mill ignored the said vital aspect of the matter and proceeded to impose the penalty of dismissal from service upon the Respondents No. 4 & 5.

11. Mr. Chamuah, learned counsel, has submitted that the domestic enquiries having been vitiated, no penalty basing on such vitiated enquiry was permissible to be imposed upon the Respondents No. 4 & 5, herein. The learned counsel, by drawing the attention of this Court to the award, dated 30.09.2013, has further submitted that the learned Labour Court had examined the evidences coming on record before it and on an examination of the same, had concluded that the domestic enquiries held against the Respondents No. 4 & 5, herein, was so held in clear violation of the principles of natural justice. It was further highlighted by Mr. Chamuah, learned counsel, that the learned Labour Court had also concluded that the departmental enquiries were not properly conducted and neither, proper evidence was adduced, nor, any discussion was made in the enquiries. It was also submitted by Mr. Chamuah, learned counsel, that the learned Labour Court had also noticed that no discussion was seen to have been made in the enquiry reports Page No.# 11/25

of the enquiry officers with regard to the materials coming on record in the enquiry.

12. Mr. Chamuah, learned counsel, by referring to the provisions of Section 17(1) of the Industrial Disputes Act, 1947, has submitted that the present writ petition was so instituted by the Management of the petitioner Mill much after 30 days from the date of publication of the Notification, dated 18.12.2013, issued in terms of the provisions of Section 17(1) of the said Act of 1947, and accordingly, the instant writ petition would not be maintainable on the said ground of violation of the provisions of Section 17(2) of the Act of 1947. Further, Mr. Chamuah, learned counsel, has submitted that the Management of the petitioner Mill had not brought on record any material to demonstrate that during the period, the Respondents No. 4 & 5, herein, were under the orders of dismissal and even after the passing of the award, dated 30.09.2013; they were gainfully employed and accordingly, he has submitted that the contention raised by the learned senior counsel for the petitioner Mill that the Respondents No. 4 & 5's reinstatement in service in the petitioner Mill should be so directed without full backwages, would not mandate an acceptance by this Court.

13. I have considered the submissions advanced by the learned counsels appearing for the parties and perused the materials made available on record. I have also perused the decisions relied upon by the parties to the proceedings.

14. At the outset, this Court would like to consider the objection raised by Mr. Chamuah, learned counsel for the Respondents No. 4 & 5, herein, with regard to the maintainability of the present writ petition in view of the fact Page No.# 12/25

that the same was instituted before this Court after 30 days from the date of issuance of the Notification, dated 18.12.2013, under the provisions of Section 17(1) of the Industrial Disputes Act, 1947.

15. At the outset, the said issue need not detain this Court, inasmuch as, a co-ordinate Bench of this Court in the case of Godadhar Das v. Numaligarh Refinery Ltd. & ors. [judgement & order, dated 26.05.2022, in WP(C) No. 2057/2019], on consideration of the said issue, had held that the power of judicial review being an essential part and forming the basic structure of the Constitution of India, cannot be amended by the legislature, or, restricted by any Act. Further, the High Court of Calcutta in the case of North Bengal State Transport Corporation & ors. v. Sanjoy Kundu & ors. , reported in 2022(4) LLJ 124, had, on the said issue, held that an award under the Industrial Disputes Act, 1947, cannot be said to be immune to challenge and that, no writ petition would be maintainable. It further proceeded to hold that the High Court in exercise of its jurisdiction, can intervene where there is irregularity in the procedure, or, where there is error apparent, or, contrary to the principles of natural justice. Accordingly, considering the said decisions of this Court as well as the High Court of Calcutta, this Court is of the considered view that the preliminary objection raised in the matter by the learned counsel for Respondents No. 4 & 5, herein, would not mandate an acceptance and accordingly, the same stands dismissed.

16. Having rejected the preliminary objection raised in the matter by Mr. Chamuah, learned counsel for Respondents No. 4 & 5; this Court would now proceed to examine the matter on its merits. The facts, involved in the matter, has been noticed hereinabove and accordingly, the same are not reiterated.

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17. The reference made before the learned Labour Court, Guwahati, involved the allegations levelled both against the Respondents No. 4 & 5, herein. The issues which were formulated for adjudication by the learned Labour Court, Guwahati, Assam, being relevant, is extracted hereinbelow:

"(i) Whether the management of Assam Cooperative Jute Mills Ltd. P.O.- Silghat-782143, Dist.- Nagaon is justified in terminating the services of Sarvashri Prasanta Bora and Dilip Baishya, workmen with effect from 20.07.2009 and 20.10.09 respectively ?

(ii) If not, are the said workmen entitled to re-instatement with full back wages or any other relief in lieu of re-instatement?"

18. A perusal of the said issues would go to reveal that the reference involved; orders of termination issued in respect of two individuals, i.e. Prasanta Bora(Respondent No. 4, herein) and Dilip Baishya(Respondent No. 5, herein). Accordingly, it would be required that the proceedings instituted against the said Respondents No. 4 & 5, is noticed separately.

19. Proceedings against the Respondent No. 4:

The Management of the petitioner Mill, had, vide Show Cause Notice, dated 20.06.2009, alleged against the Respondent No. 4 that on 19.06.2009, he had reported late for his duty. However, on being questioned about the reason for his delay in reporting for duty, the Respondent No. 4 had picked-up an argument with the shift in-charge and had pushed the shift in-charge and furiously said "sometimes it may be late". It was further alleged that the Respondent No. 4 had not only used filthy language but had also assaulted the shift in-charge physically and thereby, created a terrorising situation inside the premises of the petitioner Mill, which was projected to have spoiled the atmosphere of the mill. The Management of the petitioner Mill had also alleged that the Respondent No. 4's uncivilised behaviour had spoiled the congenial atmosphere prevalent inside the mill.

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The Respondent No. 4 had responded to the said Show Cause Notice, dated 20.06.2009, vide his reply, dated 23.06.2009 and therein, had contended that he was not late for reporting for his duty on 19.06.2009. It was contended that in the event, the Respondent No. 4 had reported in the in the mill premises lately, he would not have been permitted to enter into the premises of the petitioner Mill at the gate by the security. The Respondent No. 4 had further contended that on the shift in-charge using filthy language against him and also by pressing his chest and directing him to leave the mill and not removing his hand from the chest; the Respondent No. 4 had pushed aside the shift in-charge. The Respondent No. 4 had further denied using of any filthy language against the departmental officer and/or assaulting him physically. The said reply, dated 23.06.2009, not being found to be satisfactory, a domestic enquiry was directed against the Respondent No. 4 and an enquiry officer came to be appointed in the matter. A perusal of the materials brought on record with regard to the conduct of the enquiry, it is noticed that the enquiry officer had not examined any of the management witnesses of the petitioner Mill to establish the allegations levelled against the Respondent No. 4, herein.

It is seen that only the deposition of the Respondent No. 4, herein, was recorded in the enquiry. A perusal of the deposition of Respondent No. 4, in its totality, goes to reveal that he had denied that he had reported for duty late on 19.06.2009. The deposition so made also reveals that the shift in- charge had repeatedly asked the Respondent No. 4 about the reason for his delay although the Respondent No. 4 had clarified that there was no delay on his part in reporting for duty on that day, the shift in-charge had continued to question him in the matter. The Respondent No. 4, in course of his deposition, had also submitted that as the departmental officer had ordered him to go out of the mill and pushed him, so, the Respondent No. 4, as a response, had Page No.# 15/25

pushed the shift in-charge aside.

The only material brought on record which can be held to be adverse against the Respondent No. 4, herein, is his response against the Question No.

31. The said Question No. 31, and the response of the respondent No. 4, thereto, being relevant, is extracted hereinbelow:

"Question No.31. You not only pushed the officer aside, but also violated the rules of the mill and by giving him threat. Is not it a serious offence on your part? Answer:- Yes, I committed an offence."

A perusal of the response of the Respondent No. 4, herein, to the Question No. 31, so posed, does not bring to the forefront that the Respondent No. 4 had admitted to the allegations levelled against him, inasmuch as, a perusal of the responses of the Respondent No. 4 to the questions put to him by the enquiry officer before posing the Question No. 31, reveals that the Respondent No. 4, herein, had not admitted to the allegations brought against him. The enquiry officer, in his report submitted in the matter on 01.07.2009, had also noticed that the Respondent No. 4 had contended in the enquiry that on the day involved i.e. on 19.06.2009, the shift in-charge had caught the Respondent No. 4 on his chest and ordered him to go out but it was held that there was no material brought on record to establish the said contention of the Respondent No. 4. The enquiry officer, thereafter, in his enquiry report, referred to the decision arrived at in the meeting of the Workers' Union, wherein, the workers had condemned the act on the part of the Respondent No. 4. However, what is material to be noted here is that such decisions arrived at in the meeting of the Workers' Union were not brought on record in the enquiry, through any witness deposing in the enquiry.

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The Respondent No. 4, herein, on receipt of a copy of the enquiry report, dated 01.07.2009, had submitted his representation against the same on 09.07.2009 and therein, had contended that it was the behaviour of the shift in-charge that led to the altercation and the incident of pushing him by the Respondent No. 4.

The competent authority of the petitioner Mill, on consideration of the materials coming on record in the enquiry, the enquiry report and the representation submitted by the Respondent No. 4 against the enquiry report, dated 01.07.2009; proceeded vide order, dated 18.07.2009, to discharge the Respondent No. 4 from his service w.e.f. 20.07.2009. It was further provided that for the period of suspension undergone by the Respondent No. 4, he would be given only half salary/wages.

20. Proceedings against the Respondent No. 5.

The Respondent No. 5, herein, who had not attended his duty on 01.09.2009 in the night shift, was issued with a Show-Cause Notice, dated 09.09.2009. In the said Show Cause Notice, it was alleged that the members of the committee constituted to ascertain the reason for the absence of Respondent No. 5 from his duty on 01.09.02009, on visiting his house on 02.09.2009, were abused by the Respondent No. 5 by use of filthy language. It was further alleged that the Respondent No. 5 had chased the representatives of the mill authority and threatened to attack them physically.

The said Show Cause Notice, dated 09.09.2009, was replied to by the Respondent No. 5, vide his reply, dated 11.09.2009. In the said reply, the Page No.# 17/25

Respondent No. 5, herein, had submitted that on 01.09.2009, he was suffering from severe stomach pain, dysentery and bleeding due to piles. The Respondent No. 5 had contended that he had visited the hospital of the petitioner Mill and a nurse therein, had given him some preliminary treatment and suggested him to take rest for the day. The Respondent No. 5 had further contended that there was no doctor present in the said hospital on the day of his visit. It was further submitted that the Respondent No. 5, had, thereafter, undergone treatment at Jakhalabandha Hospital w.e.f. 02.09.2009 to 08.09.2009. With regard to the visit by the said committee to his house, the Respondent No. 5 had submitted that the committee members had levelled false allegations against him and further that some of the members had an existing grudge against him which they had tried to take out on him and his family during their visit which may have led to the incident occasioning on the said day. The said reply submitted by the Respondent No. 5, not being found to be satisfactory, an enquiry was directed to be held against him.

It is seen that in the enquiry so held, the enquiry officer had only examined the Respondent No. 5. The enquiry officer had not required the Management of the petitioner Mill to adduce evidences for establishing the allegations levelled by them against the Respondent No. 5 in the Show Cause Notice issued to him. Be that as it may, a perusal of the deposition of the Respondent No. 5, in the enquiry, does not bring to the forefront that he had accepted the allegations levelled against him. Rather, the Respondent No. 5 had brought on record, the circumstances which had prevented him from attending his duty on 01.09.2009 as well as the reason as to why he had to remove his clothes before the members of the committee during their visit to his house. The Respondent No. 5 had contended that when the committee members had repeatedly asked him about his diseases even after he had explained about the ailments suffered by him, the Respondent No. 5 had Page No.# 18/25

removed his clothes to show the committee members that he was having bleeding on being suffering from piles.

The enquiry officer, on conclusion of the enquiry after examination of the Respondent No. 5, submitted his report in the matter on 30.09.2009. The enquiry officer in his report, disbelieved the contentions raised by the Respondent No. 5, by holding that no evidence was brought on record to prove such contentions raised by him in his deposition in the enquiry. The copy of the enquiry report on being furnished to the Respondent No. 5, he had submitted a representation against the same on 09.10.2009. Thereafter, the competent authority of the petitioner Mill, on consideration of the materials coming on record in the enquiry, including the enquiry report and the representation of the Respondent No. 5, submitted against it; proceeded vide order, dated 19.10.2009, to discharge the Respondent No. 5, from his service w.e.f. 20.10.2009. Further, the Respondent No. 5 was held to be entitled to receive only half of his remuneration for the period of his suspension.

21. A perusal of the domestic enquiries held against the Respondents No. 4 & 5, herein, would go to reveal that the Management of the petitioner Mill, did not make any endeavour to first have the charges levelled against the Respondents No. 4 & 5, established in the enquiry.

22. It is seen that the Management of the petitioner Mill had not adduced any evidence against, either, the Respondent No. 4, or, the Respondent No. 5, in the enquiries held against them. Accordingly, the enquiry officer proceeding to draw his conclusion in the matter, basing on the depositions made by the Respondent No. 5 and holding the allegations levelled against the Respondents No. 4 & 5, to have been established only on the ground that no evidence was Page No.# 19/25

adduced in support of their such contentions; is clearly erroneous. The enquiry officer ought to have first examined the management witnesses and thereafter proceeded to examine the Respondents No. 4 & 5, herein, and thereafter, only, it was permissible for the enquiry officer to have drawn the conclusions in the matter. Failure on the part of the enquiry officer appointed in respect of the enquiries instituted against the Respondents No. 4 & 5, respectively, to conduct the enquiries in the manner required, the conclusions so drawn by the enquiry officer basing on such enquiries, does not inspire confidence.

23. The reference having been made by the Government before the learned Labour Court, it is seen that Management of the petitioner Mill had adduced evidences before it in support of the said domestic enquiries. A perusal of the evidences brought on record before the learned Labour Court by the Management of the petitioner Mill, more particularly, the evidence of Management Witness No. 7, namely, Kulendu Das, who was the enquiry officer in respect of the enquiry held against the Respondent No. 4, would go to reveal that he had deposed that no witness was examined from the management side in the enquiry and that he had solely based his report on the cross-examination of the workman i.e. Respondent No. 4 made in the enquiry.

24. The evidence of Management Witness No. 1, namely, Ajit Gogoi, who was the enquiry officer in respect of the enquiry held against the Respondent No. 5, it is seen that he had permitted the representative of the Management of the petitioner Mill to cross-examine the Respondent No. 5 and basing on the materials so coming on record after such cross-examination, the enquiry report was prepared. The Management Witness No. 1 had further contended that he had not asked the Management representative to produce evidence in Page No.# 20/25

favour of the Management of the petitioner Mill. Accordingly, it is seen that the domestic enquiry was not carried-out in the manner required. Further, the evidence of Management Witness No. 6 i.e. Anupam Choudhary who was working as a Junior Technical Officer(Production) in the petitioner Mill, and the altercation of the Respondent No. 4 having occasioned on 19.06.2009, during his deposition before the learned Labour Court as Management Witness No. 6, had said that the Respondent No. 4 had not misbehaved him.

25. Likewise, the evidence of Jehirul Islam Ahmed who was examined as Management Witness No. 3, goes to reveal that he was serving at the relevant point of time as a Junior Technical Officer and he had deposed that on 01.09.2009, the Respondent No. 5 was absent from his duty but had also contended that on 01.09.2009 itself, the Respondent No. 5 had showed him a medical prescription. Further, the evidence of Management Witness No. 4, Shri Pallav Jyoti Borah, brings to the forefront that during the visit of the committee members to the house of the Respondent No. 5; the Respondent No. 5 had informed them that he was under medical treatment in the petitioner Mill hospital and that he was suffering from piles, however, he had deposed that the Respondent No. 5 had shown angry mood to the union members.

26. The evidence of Management Witness No. 5, Rabindra Kumar Sharma Barua, who, at the relevant point of time was working as the Deputy Manager(Production) of the petitioner Mill, reveals that during the enquiry, the enquiry officer had not examined any other person.

27. The said materials coming on record in the enquiry held against the Respondents No. 4 & 5, herein, clearly goes to demonstrate that the Page No.# 21/25

allegations levelled against them, were not established in the enquiries, in the manner required. The procedure adopted by the enquiry officer for conduct of the enquiries against the Respondents No. 4 & 5, and as noticed hereinabove, was clearly uncalled for and the same has the effect of vitiating the enquiries in the matter. As this Court had already noticed hereinabove that neither, the Respondent No. 4, nor, the Respondent No. 5, had admitted to the charges levelled against them in the enquiries, the conclusions drawn by the enquiry officers in the matter basing on the depositions of the Respondents No. 4 & 5, itself, is clearly unsustainable.

28. Having drawn the above conclusions, this Court would now examine the award, dated 30.09.2013, passed by the learned Labour Court in Reference Case No. 04/2010. The operative portion of the said award being relevant, the same is extracted hereinbelow:

"4. Considering the pros and cons of the evidence on record and on submission of both sides I have found that due to discussion as above the service of Dilip Baishya and Prasanta Bora has been dismissed of without any rhymes and reasons, without basis of any evidence and though it is accepted by the management that they are guilty even then for remaining absent one day by Dilip Baishya in attending office and also attending office lately by three minutes by Prasanta Bora it does not justify dismissal from service of the delinquent employees from the Cooperative Jute Mills Ltd., Silghat. It is found that the punishment and the gross-misconduct of the delinquent employee there must have relationship with justification. Therefore, under the circumstances I feel that the management is not justified in dismissing service of Dilip Baishya and Prasanta Bora on 29.07.09 and 20.10.09. Therefore, I have decided issue No. 1 against the management and I have set aside the dismissal order passed by the management. In view of the decision of Issue No. 1, Prasanta Bora and Dilip Baishya they are entitled reinstatement with full back-wages and if reinstatement is not possible in that case they will be compensated by paying sufficient compensation as the case may be in accordance with law. I have decided this issue No. 2 against the management. Accordingly, I have disposed the reference case by awarding in terms of order above."

29. The learned Labour Court for arriving at its decision, had examined the evidences adduced before it, in the matter as well as the materials coming on record in the domestic enquiries held against the Respondents No. 4 & 5, herein. On such examination of the said materials, the learned Labour Court Page No.# 22/25

had come to a conclusion that the enquiry reports being devoid of any discussion, and/or, reproduction of any evidence; could not be considered as enquiry reports for the purpose of the domestic enquiries held against the Respondents No. 4 & 5, herein. It was concluded that there was no proper procedure followed by the enquiry officers during the domestic enquiries held against the Respondents No. 4 & 5, respectively.

30. Accordingly, the learned Labour Court had concluded that the principles of natural justice were not followed by the inquiry officers in the inquiries held against the Respondents No. 4 & 5, herein.

31. On a close perusal of the conclusions reached by the learned Labour Court in the award, dated 30.09.2013, in the backdrop of the facts and circumstances existing in the domestic inquiries held against the Respondents No. 4 & 5, herein; this Court is of the considered view that the conclusions drawn by the learned Labour Court, would not mandate any interference.

32. Having drawn the above conclusions, this Court would now examine the contentions raised by Mr. Nath, learned senior counsel for the petitioner Mill, that the directions passed by the learned Labour Court, vide the award, dated 30.09.2013, for reinstatement of the Respondents No. 4 & 5, in services, with full backwages, would not be permissible.

33. It is to be noted that on the present writ petition being instituted before this Court, this Court had vide order, dated 09.04.2014, while issuing notices in the matter, stayed the effect and operation of the impugned award, dated 30.09.2013. In this connection, the learned senior counsel has also brought on Page No.# 23/25

record, the communication, dated 03.04.2017, by which both the Respondents No. 4 & 5, herein, were offered employment in their former position in the petitioner Mill with the enhanced salary existing at that relevant point of time, however, without any back wages by projecting the principle of "no work, no pay". However, it is seen that the Respondents No. 4 & 5, herein, had not accepted the said offer and had not rejoined their services.

34. Having noticed the said position, this Court is of the considered view that the conduct of the Respondents No. 4 & 5, herein, as demonstrated in the matter, would disentitle them to being conferred with the benefit of reinstatement in service in the petitioner Mill with full backwages.

35. It is also to be noted that the Respondents No. 4 & 5, herein, have not averred that they were not gainfully employed during the period they had remained out of service. This Court having stayed the effect and operation of the award, dated 30.09.2013, vide order, dated 09.04.2014; the Respondents No. 4 & 5, herein, have also not brought on record any material to demonstrate that they were not gainfully employed even after the passing of the order dated 09.04.2014.

36. In the above view of the matter and also appreciating the facts and circumstances existing in this case while upholding the decision of the learned Labour Court in its award, dated 30.09.2013, for reinstatement of the respondents No. 4 & 5, herein, in service in the petitioner Mill; this Court directs that such reinstatement in service of the Respondents No. 4 & 5, would not be with full backwages. However, the Respondents No. 4 & 5, would be entitled to only 50% of the backwages due to them with effect from the date they were so placed under suspension till the date of their reinstatement in Page No.# 24/25

service.

37. Accordingly, the authorities of the petitioner Mill are hereby directed to reinstate the Respondents No. 4 & 5, herein, in their services within a period of 15(fifteen) days from the date of receipt of a certified copy of this order.

38. On reinstatement of the Respondents No. 4 & 5, herein, in their respective services in terms of the directions passed by this Court, hereinabove; the authorities of the petitioner Mill shall notionally fix the wages receivable by the Respondents No. 4 & 5, herein, since the date they were placed under suspension till the date of their reinstatement in service by reckoning the wages coming into force from time to time and applicable to the Respondents No. 4 & 5, in the event, they had continued in the service. In other words, the continuity in service of the Respondents No. 4 & 5, in the petitioner Mill, would be maintained.

39. On computation of the wages due to the Respondents No. 4 & 5, in the manner, directed hereinabove; 50% of such wages with effect from the date they were placed under suspension till the date of their reinstatement in service, shall be released to the Respondents No. 4 & 5, herein, within an outer period of 3(three) months from the date of receipt of a certified copy of this order.

40. It is further provided that on reinstatement of the Respondents No. 4 & 5, in their respective service, continuity of their services having been directed to be maintained; the wages of the Respondents No. 4 & 5, herein, on the date of their reinstatement in service, shall be so fixed by reckoning the wages they otherwise would have been entitled to draw on such date had they continued in their respective services.

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41. With the above directions and observations, the present writ petition stands disposed of

JUDGE

Comparing Assistant