Awadhesh Kumar Ojha vs The Employer In Relation To The ...
2022 Latest Caselaw 4732 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           (Civil Writ Jurisdiction)
                      W.P.(L). No.547 of 2021
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Awadhesh Kumar Ojha                          .... .... Petitioner
                               Versus

1. The Employer in relation to the Management of Sirka Group, Argada Colliery of M/s. CCL, P.O.-Argada, P.S.-Ramgarh, District-Ramgarh.

2. The Project Officer, Argada Colliery of M/s. CCL, P.O.-Argada, P.S.- Ramgarh, District-Ramgarh. .... .... Respondents

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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR

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For the Petitioner                    : Mr. Saurabh Shekhar, Adv.
                                        Mr. Anurag Kumar, Adv.
For the Respondents                   : Mr. Radha Krishna Gupta, Adv.
                                        Mrs. Pinky Shaw, Adv.
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              th
12/Dated: 28 November, 2022

1. Heard the learned counsel for the petitioner and the learned counsel for the respondents.

2. The present writ petition has been filed for quashing the Award dated 04.06.2020 passed by the learned Presiding Officer, Central Government Industrial Tribunal No.-1, Dhanbad in Reference No.17 of 2015 whereby the dismissal of the concerned workman has been upheld.

3. From the pleading and the arguments of the parties, it appears that the concerned workman has been appointed in the year 1965 as Upper Division Clerk under the respondent company. He has been charged for preparing false bills for the purpose of L.T.C. (Leave Travel Concession) and L.L.T.C. (Long Leave Travel Concession). The charge-sheet (Ref. No.PO/Sirka/PD- 12/Disc.Action/96/11033-41) dated 30/31.10.1996 reads as under:-

"To Sri A.K. Ojha, U.D.C./Cashier, Sirka Colliery, I hereby require you to state as to why disciplinary action as deemed fit should not be taken against you for the following charges:-

You were requisitioning money from Area Accounts Office, Argada for payment of LTC/LLTC which included enormous fictitious payments.

You allowed Sri Bishun Ram to make payment of LTC/LLTC alongwith an outsider employed by Sri Bishun Ram even though Sri Ram was not authorised to make payments, inspite of the payment clerk were deputed to make such payment.

You accepted vouchers after payment of LTC/LLTC with false signature and thumb impressions and those vouchers were sent to the Area Accounts Office for adjustment of the advance money drawn for payment of LTC/LLTC.

You accepted vouchers signed by Sri Bishun Ram after drawing money on behalf of employees of Sirka colliery without any aurhotisation of the concerned employee and sent those vouchers also to Area Accounts Office for adjustment of advance money.

You did not keep Cash Book properly and the amount of LTC/LLTC payment was made as lump sum and did not give the details of the employees to whom the payments were made. This was done to hide the identity of the persons receiving payments.

In this way fraudulent, false and excess payment amounting to Rs.88.39 Lakhs was made in the span of four years i.e. from 01/01/1991 to 31/12/1994. You disregarded the provisions of Finance Manual."

The above charges constitute misconduct under clause 18(i)(a) and

(g) of the Standing Orders by which your services are governed.

You are required to submit your explanation within 7 days from the date of receipt of the charge sheet. Should you fail to submit your explanation within the stipulated period, it will be presumed that you have nothing to say and have accepted the charges. Management will dispose it off according to merit of the case.

You have already been placed under suspension with effect from 30.9.96 vide Memo No.PO(SG)E-16/Disc.Action/96/9469-76 dated 28.9.96 pending issue of the above charge sheet and the same will continue till further order."

4. It appears that on the strength of above charges a domestic enquiry has been held in which the workman has been found guilty on all five counts vide enquiry report dated 05.07.2000. Further, it appears that the said enquiry report has been accepted and the second show cause has been issued vide show cause notice dated 17.07.2000 and after considering the reply, the concerned workman has been dismissed from services on 03.11.2000. It further appears that against the above order of dismissal, the industrial dispute has been raised which has been finally referred in the following terms:-

"Whether the action of the Management of Sirka Group project of M/s CCL in dismissing Sri A.K. Ojha from the services of the Company w.e.f. 3.11.2000 is fair and justified? To what relief the concerned workman is entitled?"

5. It further appears that the tribunal vide its order dated 10.08.2017 has recorded the finding that the enquiry is fair and proper. Once the enquiry has been found fair and proper and since it is a matter of monetary fraud and as such the order of dismissal has been upheld by the impugned Award dated 04.06.2000.

6. The said Award has been assailed by the learned counsel for the petitioner on the following grounds:-

(a) The period of charge is 1991-1994 while the concerned workman has joined as cashier in the year 1994.

(b) The person who was posted from the year 1991-1993 has not been even charged.

(c) The concerned workman has not been charge-sheeted by the C.B.I.

after thorough enquiry in criminal proceeding.

(d) There is no evidence on record proving the charges levelled against the petitioner.

(e) Only procedural aspect has been looked into and not the substance of the enquiry has been considered.

7. On the other hand, the learned counsel for the management has supported the Award and submission has been advanced that once the departmental proceeding has been held fair and proper then there can't be re- appreciation of evidence and only arena is available under Section 11-A of the Industrial Disputes Act, 1947 regarding proportionality of the punishment. In the present case, the nature of charge justifies the punishment awarded and as such no interference is required by this Court under writ jurisdiction.

8. Having heard the learned counsel for the parties and from perusal of the records, it appears that after conducting the enquiry finding has been recorded by the Enquiry Officer and that has been accepted by the management to the effect that charge stands proved. The said enquiry has been held as fair and proper as no challenge has been thrown by the concerned employee. The law has been well settled by the various judgment of the Hon'ble Apex Court. For the present purpose, Para-21 of the judgment of the Hon'ble Apex Court reported in (2021) 3 SCC 108 in the case of State of Uttarakhand and Others Versus Sureshwati, is reproduced hereinbelow:-

"21. Reliance is also placed on the judgment of this Court in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. wherein the broad principle regarding holding of the enquiry were spelt out as: (SCC pp. 827-29 & 831- 32, paras 32 & 40-41) '32. From those decisions, the following principles broadly emerge:

(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.

(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.

(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.

(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.

(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.

(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.

(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.

(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 victimisation.

(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Panitole Tea Estate v. Workmen within the judicial decision of a Labour Court or Tribunal."

9. The law has been settled by the Hon'ble Apex Court that once matter reached to the Tribunal then the Tribunal has jurisdiction to say that the enquiry is fair and proper or not. Fairness doesn't mean only the procedural matter rather evidence can also be looked into to the effect that the finding is perverse or not. If it is found that the enquiry is defective then it has to be treated as no enquiry and the opportunity has to be given to both the parties for leading the evidences. If any evidence is brought on record then it has to be appreciated or evaluated by the concerned Tribunal for the purpose of recording finding of guilt or otherwise. In such a condition the Tribunal has authority to go into the proprietary of the punishment also. The tribunal has been given power to go into the proprietary of the punishment also in the case of termination of service as stipulated under Section 11-A of the Industrial Disputes Act, 1947. This procedure provides opportunity to both parties i.e. employer and employee to lead evidence.

10. In the present case, the enquiry has been held fair and proper and that has been held so on the basis of concession made by the concerned workman. That finding recorded by the Tribunal has not been challenged before this court. The point has been taken that the Tribunal should have appreciated the evidence brought on record. This argument is no more

available to the petitioner. Once the enquiry has been accepted as fair and proper, the Tribunal is estopped from looking into or re-appreciating the evidence. Since in the present case the enquiry has been found fair and proper, the Tribunal has rightly not evaluated the evidence on record. This Court is also not supposed to re-appreciate the evidence as the enquiry has been found fair and proper and that has not been challenged by the concerned workman.

11. In view of above discussion, this Court finds that there is no merit in the present case. Accordingly, the present writ petition is, hereby, dismissed.

(Rajesh Kumar, J.)

Amar/-