Jharkhand High Court
Employers In Relation To The ... vs Their Workman Sri Laxman Gope on 22 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (L) No. 55 of 2013
Employers in relation to the Management of Kathara Washery of
M/s C. C. Ltd., Kathara Area, P.O. & P.S. Kathara, District
Bokaro, Sri Birendra Trivedi, General Manager (Admn.) Central
Coalfield Ltd. at Dharbhanga House, P.O. G.P.O., P.S. Kotwali,
Dist. Ranchi ... ... Petitioner
Versus
Their Workman Sri Laxman Gope, S/o Late Babuli Gope, Ex.
employee of Kathara Colliery, Kathara Area, P.O. Kathara, P.S.
Gomia, District- Bokaro ... ... Respondent
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. A. K. Das, Advocate
For the Respondents : Ms. M. M. Pal, Senior Advocate
: Ms. Mahua Palit, Advocate
---
18/22.08.2023
1. Learned counsel for the parties are present.
2. This writ petition has been filed challenging the award
dated 30.11.2010 passed by the Presiding Officer, Central
Government Industrial Tribunal No. I, Dhanbad in Reference Case
No. 03 of 2004, whereby the order of termination passed by the
petitioner (hereinafter referred to as "the Management") in the
disciplinary proceeding has been set-aside and the respondent
(hereinafter referred to as "the workman") has been directed to be
reinstated in service with effect from 05.02.2003 and a direction has
been issued to pay full back wages.
3. The background of the case is that it was alleged that
on 02.11.2000, the workman along with his son forcibly entered into
the Blasting Room of mines office of Kathara Colliery and tried to get
forcibly signed on attendance sheet for 30 days for the month of
October, 2000 by Sri A.K. Nandy, S.O.M./Manager, Kathara Colliery.
On refusal, the workman along with his son assault the officer namely
Sri. A.K. Nandy who suffered injuries. The workman was subjected
to disciplinary enquiry as well as a criminal case. The charges were
proved in the disciplinary enquiry and the workman was terminated
from service. The workman raised industrial dispute and the reference
was made to the learned Tribunal. During the pendency of the
reference case, the workman was acquitted in the criminal case. The
domestic enquiry was held to be fair and proper vide order
dated 05.03.2010 passed by the learned Tribunal. The learned
Tribunal decided the reference in favour of the workman and was
pleased to set-aside order of his termination with a direction upon the
Management to give full back wages. The termination order was set-
aside only on account of the acquittal of the workman in the criminal
case. The award of the learned Tribunal is under challenge in this writ
petition.
Arguments of the Management
a. Vide order dated 05.03.2010, the domestic enquiry was held to
be fair and proper and thereafter, the matter was posted for
hearing on the arguments on merits. The scope of examination
before the learned Tribunal was within the purview of Section
11A of the Industrial Disputes Act and once the domestic
enquiry was held to be fair and proper, the scope was all the
more limited. The learned Tribunal does not sit in appeal to the
findings and the decisions taken in the domestic enquiry and the
limited scope of enquiry is in connection with any perversity or
shockingly disproportionate punishment to the workman
concerned.
b. The learned Tribunal has passed the impugned award on the
sole ground that the workman was acquitted by the criminal
Court. It has been submitted that such approach of learned
Tribunal is ex-facie perverse and calls for interference by this
Court under writ jurisdiction as the acquittal of the workman by
the criminal Court has no bearing in the matter of domestic
enquiry, in which the final order was passed after considering
the materials which were brought on record in the domestic
enquiry. Once a person is found guilty and an order of
termination is passed by the Management on the evidences
produced in domestic enquiry, subsequent acquittal in the
criminal case cannot be taken into consideration to set-aside the
order of termination passed after full-fledged enquiry.
c. The disciplinary proceedings are conducted on the principles of
'preponderance of probabilities' and criminal case is based on
establishment of the case by the prosecution 'beyond all
reasonable doubt'. The order of acquittal of the workman
clearly indicates that the incident stood proved even before the
criminal Court, but the action of hitting Sri. A. K. Nandy, who
was the higher authority of the workman, could not be proved,
against the workman but was proved against the son of the
workman and as per the incident, all the family members
including the workman had come to the office of Sri. A. K.
Nandy to give effect to the incident. The learned counsel
submits that it is not in dispute that Sri. A. K. Nandy had
suffered injuries during the incident.
d. The learned counsel has also submitted that the charge-sheet
has been annexed in the writ record and the writ records also
indicate that Mr. Nandy was examined in the domestic enquiry
and was also cross-examined by the workman. Thereafter, the
workman did not choose to participate in the departmental
proceedings. The workman was found guilty and after
completing the procedure, he has been terminated.
e. The learned counsel has relied upon the judgment passed by the
Hon'ble Supreme Court reported in (2023) SCC Online 205
(Imtiyaz Ahmad Malla Vs. State of Jammu and Kashmir and
Others), para 11 and 12 to submit that the term 'honourable
acquittal' has been duly explained and in the present case, it
cannot be said to be a case of 'honourable acquittal'.
f. He has also relied upon the judgment reported in (2012) 1 SCC
442 (Divisional Controller, Karnataka State Road Transport
Corporation Vs. M. G. Vittal Rao) and has in particular
referred to paragraph 24 thereof to submit that the law is well-
settled that the standard of proof in both proceedings are quite
different and in case where the termination is not based on mere
conviction of an employee in the criminal case, the acquittal of
employee in the criminal case cannot be the basis for taking
away the effect of departmental proceedings nor can such an
action of the department be termed as double jeopardy. He has
further submitted that the earlier case of "Capt. M. Paul
Anthony vs Bharat Gold Mines Ltd. & Anr." reported in
(1999) 3 SCC 679 has also been taken into consideration by the
Hon'ble Supreme Court in this judgment and it has been held
that it does not lay down the law of universal application. Facts,
charges and nature of evidence etc. involved in an individual
case would determine as to whether decision of acquittal would
have any bearing on the findings recorded in the domestic
enquiry.
g. The learned counsel submits that in the present case, the
incident is not in dispute. The workman has been acquitted
merely on the ground that the prosecution could not prove the
allegation against the workman that he was the person who used
the stick to hit Mr. Nandy.
Arguments of the workman
4. Learned senior counsel appearing on behalf of the respondent-
workman, on the other hand, has submitted as under: -
a) The scope of interference in the award is very limited and the
same has been considered by the Hon'ble Supreme Court in the
judgment reported in AIR 1964 SC 477 (Syed Yakub vs. K. S.
Radhakrishnan & Others), para 7. She submits that the
impugned award does not suffer from any illegality or
perversity.
b) The learned Tribunal was within its right to consider the
judgment of acquittal of the workman in the criminal case. She
has submitted that arising out of the same incident, both the
proceedings i.e. criminal case as well as the departmental
proceeding was initiated. At the stage of departmental
proceeding, the workman had not participated after sometime in
view of the fact that the criminal case was pending against the
workman and the action of the workman was in consonance
with the judgment passed by the Hon'ble Supreme Court in the
case of Capt. M. Paul Anthony (supra). The learned senior
counsel has also submitted that the workman could not
participate on account of non-communication of the date.
However, at the same time it is not in dispute from the side of
the workman that the departmental enquiry was held to be fair
and proper and the workman has not filed any cross objection
/writ petition before this Court against such finding recorded by
the learned Tribunal.
c) In spite of the fact that the departmental proceeding was held to
be fair and proper, still the learned Tribunal was within his right
to examine the materials which were adduced before the
enquiry officer and while referring to the materials on record,
she submits that the findings of the enquiry officer was perverse
and therefore, it called for interference by the learned Tribunal.
d) Since the learned Tribunal found that the workman was
acquitted in the criminal case, there was no further occasion for
the learned Tribunal to enter into the evidences in the domestic
enquiry and consequently, the learned Tribunal has not entered
into such evidences, but acquittal in the criminal case was
enough for the learned Tribunal to set-aside the termination and
reinstate the workman. She submits that the criminal case as
well as the departmental proceeding was based on the same
incident and allegation and same set of evidences. The learned
counsel has relied upon the judgment passed by the Hon'ble
Supreme Court reported in (1999) 3 SCC 679 "Capt. M. Paul
Anthony vs Bharat Gold Mines Ltd. & Anr." as well as the
judgment reported in 2002 (3) JLJR 469 (Md. Sohrab Vs.
Union of India and others) to submit that when the criminal
case as well as the departmental proceeding is based on same
set of facts and charges, the acquittal in the criminal case has a
directing bearing in the departmental proceeding.
e) The scope of enquiry under Section 11A of the Industrial
Disputes Act has been duly considered by this Court in the Full
Bench Judgment of Hon'ble Patna High Court reported in 1990
(2) PLJR 797 (FB) (Indian Aluminium Company, Ltd. Vs.
Labour Court, Ranchi, and another).
f) While trying to explain the reasons for the incident, the learned
senior counsel has submitted that the incident had happened on
account of the fact that there was a dispute in connection with
the claim of compensation as the land of the family member of
the workman was acquired by the CCL and the son of the
workman was contacting Mr. Nandy in respect of the
compensation, without the permission of the workman.
g) The learned senior counsel has also submitted that in spite of
the fact that there was no stay order passed by this Court, the
workman was never permitted to join and the award was never
implemented and consequently, a petition under Section 17B of
the Industrial Disputes Act, 1947 could not be filed, though
execution proceeding was initiated. She submits that the
workman is entitled for full back wages.
h) So far as the back wages are concerned, she has relied upon the
judgment passed by the Hon'ble Supreme Court in the case
reported in (2013) 10 SCC 324 [Deepali Gundu Surwase Vs.
Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and others],
para 30 as well as the judgment reported in (2017) 2 SCC 308
(Allahabad Bank and others Vs. Krishna Narayan Tewari),
para 8, 10 and 11.
i) The workman has already attained the age of superannuation
and considering the age and long pendency, appropriate order
be passed. She submits that the present age of the workman is
about 73 years. She has also submitted that so far as the
proportionality of punishment is concerned, the judgment
passed by the Hon'ble Supreme Court reported in (1995) 6 SCC
749 (B.C. Chaturvedi Vs. Union of India and others) be taken
into consideration.
Rejoinder Arguments of the Management
5. In response, learned counsel for the Management has relied
upon the judgment decided on 20.09.2018 in Civil Appeal
No. 9832/2018. He has referred to para 12 of the said judgment to
submit that there is no materials on record that the workman was not
gainfully employed anywhere during the period he remained out of
service.
Findings of this Court.
6. After hearing the learned counsel for the parties, it is not in
dispute that the workman was terminated from service with effect
from 05.02.2003 after conducting departmental enquiry. It is further
not in dispute that vide order dated 24.12.2003, the Central
Government referred the matter to the Industrial Tribunal for
adjudication in exercise of power conferred by clause (d) of sub-
section (1) and sub-section (2A) of Section 10 of the Industrial
Disputes Act, 1947. The terms of reference was as follows:
"Whether the action of the management of Kathara Washery of M/s. CCL
to terminate the service of Sri Laxman Gope, workman w.e.f. 5.2.03 is legal
and justified? If not, to what relief is the workman concerned entitled?"
7. Arising out of the same incident, a criminal case was also
instituted against the workman for which First Information Report was
lodged against the workman and his son, inter alia, under Sections
323/34, 341, 353/34 and 307/34 of Indian Penal Code. During the
pendency of the reference case, the workman was acquitted in the
criminal case vide judgment dated 23.04.2004 passed by the learned
Additional Sessions Judge, Fast Track Court No. I, Bermo at
Tenughat.
8. Before the learned Tribunal, the Management produced two
witnesses and proved documents as Exts. M-1 to M-9. The concerned
workman has produced himself as witness and proved documents as
Ext. W-1 to W-7.
9. The domestic enquiry was held to be fair and proper vide order
dated 05.03.2010.
10. The perusal of the impugned award shows that the learned
Tribunal has taken into consideration only the fact that the workman
was acquitted in the criminal case and has set-aside the order of
termination and asked the Management to reinstate the workman with
full back wages. The petitioner-Management is aggrieved by the
award and has submitted that the workman could not have been
reinstated merely because he has been subsequently acquitted in the
criminal case and subsequent acquittal could not have been taken into
consideration while deciding the case under Section 11A of the
Industrial Disputes Act, 1947 when the domestic enquiry was held to
be fair and proper.
11. Paragraph 1 of the award deals with the terms of reference;
Paragraph 2 deals with the written statement of the workman;
Paragraph 3 deals with the written statement of the Management;
Paragraph 4 mentions about exchange of rejoinder by the parties;
Paragraph 5 records that the domestic enquiry was held to be fair and
proper; Paragraph 6 records that the Management witness M.W-1
proved exhibits M-1 to M-9 and the concerned workman produced
himself as sole witness and proved the documents as exhibit W-1 to
W-7; Paragraph 7 records that the main argument advanced on behalf
of the workman was that he was falsely implicated in a criminal case
and ex-parte hearing was held against him and that he was an
employee of washery and the alleged incident had taken place in the
colliery blasting room. Paragraph 8 of the award records the
submission of the Management and in paragraph 8 itself, the argument
of the workman has been recorded that he was honourably acquitted in
the criminal case and on this ground alone the order of termination
was illegal and void ab initio. The paragraph 8 of the award also
records that in cross-examination the workman admitted that he got
second enquiry notice and he got the charge-sheet, but did not file any
reply to the charge-sheet and that he did not participate in the enquiry
proceeding. It has been recorded that the enquiry proceeding bears his
signature which shows that he got charge-sheet, he replied to the
charge-sheet and participated in the enquiry.
12. Thereafter, in paragraphs 9 and 10 of the impugned award, the
learned Tribunal referred to the judgments cited by the Management
including the judgment passed by Hon'ble Supreme Court in the case
of "The Workmen of M/s. Firestone Tyre and Rubber Co. of India
(Pvt.) Ltd. Vs. The Management and Others" reported in (1973) 1
SCC 813 wherein it has been held that the labour Court should not
substitute its own finding merely because two views are possible on
the basis of evidence on record, however, the labour Court can
examine the aspect of proportionality and that the domestic enquiry
was conducted in accordance with the principles of natural justice and
that the findings in the enquiry report were not perverse. The learned
Tribunal also recorded that the Management referred to the judgment
passed by the Hon'ble Supreme Court reported in (2008) 1 SCC (L &
S) 890 to submit that the standard of proof in domestic enquiry was
'preponderance of probability' and not 'beyond reasonable doubt'.
13. Paragraph 10 of the award refers to the judgments relied upon
by the workman and also the assertion of the workman that no
information was given to the workman through newspaper that the
enquiry would be held on 22.08.2001. The workman also asserted that
when the workman has been acquitted in criminal proceeding, he
should be reinstated with full back wages.
14. The learned Tribunal recorded its finding in paragraphs 11 and
12 as under:
"11. Considering above facts, it shows that the concerned workman was
acquitted by criminal court, but on the basis of enquiry was held against
him and was dismissed from service. As per law laid down by the Hon'ble
Supreme Court and Hon'ble Jharkhand High Court when the concerned
workman was acquitted in criminal charge by criminal court and on the
same charge he has been dismissed, his dismissal cannot be said to be
good in the eye of law.
12. In view of the above facts and circumstances, the concerned workman
is entitled for reinstatement in service and the action of the management of
Kathara Washery of M/s. CCL to terminate the service of Sri Laxman
Gope w.e.f. 5.2.03 is not legal and justified. So he is entitled for
reinstatement with full back wages. Management is directed to reinstate
the concerned workman within 30 days from the date of publication of the
award."
15. Thus, from the perusal of the impugned award this Court finds
that the sole reason for setting-aside the order of termination of the
workman was that he has been acquitted in criminal charges by
holding that when the concerned workman was acquitted in criminal
charge by criminal court and on the same charge he has been
dismissed, his dismissal cannot be said to be good in the eye of law.
16. The argument of the Management in connection with aforesaid
award passed by the learned Tribunal is-
(a) The subsequent acquittal could not have been taken into
consideration and the learned Court below ought to have
confined itself to the material which had come up during
enquiry as the enquiry was held to be fair and proper.
(b) Even if the acquittal could be taken into consideration,
the learned Tribunal ought to have compared the materials
which were placed in the criminal case. The mere acquittal in
the criminal case cannot automatically entitle the workman to
get the order of termination set-aside and consequent
reinstatement, that too, with full back wages.
17. On the other hand, the main argument of the workman is that
the criminal case as well as the enquiry proceeding were started on the
basis of same charges. The workman having been acquitted in the
criminal charges, was bound to be reinstated by setting-aside his order
of termination. It has also been submitted that when the criminal case
was pending, in such circumstances, the enquiry proceeding should
have been stayed.
18. In the judgment passed by the Hon'ble Supreme Court in the
case of "The Workmen of M/s. Firestone Tyre and Rubber Co. of
India (Pvt.) Ltd. Vs. The Management and Others" reported in
(1973) 1 SCC 813, the legal position as existed prior to coming into
force of Section 11A and changes effected thereby, were duly
explained from paragraphs 33 to 41-A of the judgment and some of
the important points are as under: -
a. In paragraph 33 of the judgment, it has been observed that one
of the prime objects of Section 11-A was that the learned
Tribunal should have the power, in cases, where necessary, to
set-aside the order of discharge or dismissal and direct
reinstatement or award any lesser punishment.
b. In paragraph 36 of the judgment, the circumstances when an
employer has held a proper and valid domestic enquiry before
passing the order of punishment, has been considered. It has
been held that the Tribunal is now clothed with the power to
reappraise the evidence in the domestic enquiry and satisfy
itself whether the said evidence relied on by an employer
establishes the misconduct alleged against a workman. What
was originally a plausible conclusion that could be drawn by an
employer from the evidence, has now given place to a
satisfaction being arrived at by the Tribunal that the finding of
misconduct is correct. It has been held that the Tribunal is now
at liberty to consider not only whether the finding of the
misconduct is correct, but also to differ from the said finding if
a proper case is made out. What was once largely in the realm
of the satisfaction of the employer, has ceased to be so and now
it is the satisfaction of the Tribunal that finally decides the
matter.
19. Thus, in terms of the judgment passed by the Hon'ble Supreme
Court reported in (1973) 1 SCC 813 (Supra), even if the domestic
enquiry is held to be proper and valid, still the learned Tribunal has to
examine the materials of the domestic enquiry and come to its own
satisfaction regarding alleged misconduct and it can also differ in a
proper case with the finding of the domestic enquiry.
20. Paragraphs 33, 36, 40, 41 and 41-A of the aforesaid judgment
are quoted as under:
"33. The question is whether Section 11-A has made any changes in the
legal position mentioned above and if so, to what extent? The Statement of
Objects and Reasons cannot be taken into account for the purpose of
interpreting the plain words of the section. But it gives an indication as to
what the legislature wanted to achieve. At the time of introducing Section
11-A in the Act, the legislature must have been aware of the several
principles laid down in the various decisions of this Court referred to
above. The object is stated to be that the Tribunal should have power in
cases, where necessary, to set aside the order of discharge or dismissal
and direct reinstatement or award any lesser punishment. The Statement
of Objects and Reasons has specifically referred to the limitations on the
powers of an Industrial Tribunal, as laid down by this Court in Indian
Iron and Steel Co. Ltd. case.
34. This will be a convenient stage to consider the contents of Section 11-
A. ...........................
35. We cannot accept the extreme contentions advanced on behalf of the
workmen and the employers. .............................
36. We will first consider cases where an employer has held a proper and
valid domestic enquiry before passing the order of punishment. Previously
the Tribunal had no power to interfere with its finding of misconduct
recorded in the domestic enquiry unless one or other infirmities pointed
out by this Court in Indian Iron & Steel Co. Ltd. case existed. The conduct
of disciplinary proceedings and the punishment to be imposed were all
considered to be a managerial function with which the Tribunal had no
power to interfere unless the finding was perverse or the punishment was
so harsh as to lead to an inference of victimisation of unfair labour
practice. This position, in our view, has now been changed by Section 11-
A. The words "in the course of the adjudication proceeding, the Tribunal
is satisfied that the order of discharge or dismissal was not justified"
clearly indicate that the Tribunal is now clothed with the power to
reappraise the evidence in the domestic enquiry and satisfy itself whether
the said evidence relied on by an employer establishes the misconduct
alleged against a workman. What was originally a plausible conclusion
that could be drawn by an employer from the evidence, has now given
place to a satisfaction being arrived at by the Tribunal that the finding of
misconduct is correct. The limitations imposed on the powers of the
Tribunal by the decision in Indian Iron & Steel Co. Ltd. case, can no
longer be invoked by an employer. The Tribunal is now at liberty to
consider not only whether the finding of misconduct recorded by an
employer is correct; but also to differ from the said finding if a proper
case is made out. What was once largely in the realm of the satisfaction of
the employer, has ceased to be so; and now it is the satisfaction of the
Tribunal that finally decides the matter.
37. .....
38. ....
39. ....
40.Therefore, it will be seen that both in respect of cases where a domestic
enquiry has been held as also in cases where the Tribunal considers the
matter on the evidence adduced before it for the first time, the satisfaction
under Section 11-A, about the guilt or otherwise of the workman
concerned, is that of the Tribunal. It has to consider the evidence and
come to a conclusion one way or other. Even in cases where an enquiry
has been held by an employer and a finding of misconduct arrived at, the
Tribunal can now differ from that finding in a proper case and hold that
no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of
the employers that the stage for interference under Section 11-A by the
Tribunal is reached only when it has to consider the punishment after
having accepted the finding of guilt recorded by an employer. It has to be
remembered that a Tribunal may hold that the punishment is not justified
because the misconduct alleged and found proved is such that it does not
warrant dismissal or discharge The Tribunal may also hold that the order
of discharge or dismissal is not justified because the alleged misconduct
itself is not established by the evidence. To come to a conclusion either
way, the Tribunal will have to re-appraise the evidence for itself.
Ultimately it may hold that the misconduct itself is not proved or that the
misconduct proved does not warrant the punishment of dismissal or
discharge. That is why, according to us, Section 11-A now gives full power
to the Tribunal to go into the evidence and satisfy itself on both these
points. Now the jurisdiction of the Tribunal to reappraise the evidence and
come to its conclusion enures to it when it has to adjudicate upon the
dispute referred to it in which an employer relies on the findings recorded
by him in a domestic enquiry. Such a power to appreciate the evidence
and come to its own conclusion about the guilt or otherwise was always
recognised in a Tribunal when it was deciding a dispute on the basis of
evidence adduced before it for the first time. Both categories are now put
on a par by Section 11-A.
41-A. Another change that has been effected by Section 11-A is the power
conferred on a Tribunal to alter the punishment imposed by an employer.
If the Tribunal comes to the conclusion that the misconduct is established,
either by the domestic enquiry accepted by it or by the evidence adduced
before it for the first time, the Tribunal originally had no power to
interfere with the punishment imposed by the management. Once the
misconduct is proved, the Tribunal had to sustain the order of punishment
unless it was harsh indicating victimisation. Under Section 11-A, though
the Tribunal may hold that the misconduct is proved, nevertheless it may
be of the opinion that the order of discharge or dismissal for the said
misconduct is not justified. In other words, the Tribunal may hold that the
proved misconduct does not merit punishment by way of discharge or
dismissal. It can, under such circumstances, award to the workman only
lesser punishment instead. The power to interfere with the punishment and
alter the same has been now conferred on the Tribunal by Section 11-A."
21. Moreover, in the judgment passed by the Hon'ble Supreme
Court in the case of The Workmen of M/s. Firestone Tyre and
Rubber Co. of India (Pvt.) Ltd. (Supra), it has been held that after
introduction of Section 11-A in the Industrial Disputes Act, 1947, the
learned Tribunal is at liberty to consider not only whether the finding
of misconduct recorded by an employer is correct; but also, to differ
from the said finding if a proper case is made out. It has also been held
that what was once largely in the realm of the satisfaction of the
employer, has ceased to be so, and now it is the satisfaction of the
Tribunal that finally decides the matter. The duty of the industrial
tribunal and the scope of appreciation in terms of Section 11-A of
Industrial Disputes Act has been elaborately dealt with and laid down.
22. In the judgment passed by the Full bench of Hon'ble Patna
High Court reported in 1990 (2) PLJR 797 (FB) (Pat) (supra) which
has been heavily relied upon by the learned counsel for the workman
all the three judges were of the same view, however, a separate
judgment was delivered by one of the Hon'ble Judges from paragraph
18 of the report by formulating the question of law in paragraph 19 as
follows:-
"Whether in view of Proviso to Section 11A of the Industrial Disputes
Act, 1947, any fresh evidence can be adduced on the point of
victimisation, unfair labour practice and mala fide on the part of the
management?"
23. Paragraphs 20, 21 and 22 of the aforesaid report are quoted as
under: -
"20. There cannot be any doubt that in terms of the aforementioned
provisions, the jurisdiction of the Tribunal to give an appropriate relief
to the workmen has been extended to a great extent.
21. By reason of the aforementioned provisions, the Labour Courts and
the Tribunals have been conferred with a wide power not only to
consider the materials of the domestic enquiry held against the
delinquent workmen afresh, so as to come to a finding, as to whether
the workmen can be said to be guilty of the misconduct allegedly
committed by him and found to be correct in the domestic enquiry but
also to consider as to whether the order of discharge or dismissal
passed against the concerned workman should be suitably altered so as
to meet the exigencies of the circumstances.
22. However, it is now well settled that the power of the Labour Court
or the Industrial Tribunal is although wide, it can interfere with the
findings of the domestic enquiry only on assigning cogent and sufficient
reasons."
24. Keeping in view the aforesaid judgments, this Court is of the
considered view that acquittal of the workman in the criminal case,
arising out of the same incident, during the pendency of the reference
before the learned Industrial Tribunal is one of the materials which
was required to be considered by the learned Tribunal to come to a
conclusion as to whether the order of termination of the workman
called for any interference. The argument of the learned counsel for
the Management that the matter was required to be confined only to
the examination of the materials available in the domestic enquiry and
that the learned Tribunal could not take the acquittal of the workman
into consideration, is rejected.
25. This Court is of the considered view that the learned Tribunal
was within its jurisdiction to take into account the judgment of
acquittal of the workman in the criminal case which was subsequent to
the order of termination arising out of domestic enquiry and during the
pendency of the reference case. In such circumstances, the acquittal in
the criminal case would certainly constitute a relevant material which
would enable the learned Tribunal to arrive at the conclusion
regarding alleged misconduct and may also have a bearing on the
quantum of punishment. This Court is also of the considered view that
if the subsequent order of acquittal in the criminal case passed during
the pendency of the reference case is kept outside the scope of
consideration by the learned Tribunal, the same will defeat the ends of
justice. However, the order of acquittal has to be carefully scrutinized
as has been laid down by the Hon'ble Supreme Court in the judgment
reported in (2019) 10 SCC 367 (Karnataka Power Transmission
Corporation Limited Vs. C. Nagaraju and Another).
26. The acquittal in the present case is subsequent to the order of
termination and moreover, the order of acquittal is certainly a material
before the learned Tribunal who has the power to consider not only
whether the finding of misconduct recorded by an employer is correct,
but also to differ from the said finding, if a proper case is made out
even in the circumstances where the domestic enquiry has been held to
be fair and proper. The learned Tribunal has also to see as to whether
the punishment is proportionate and whether it can interfere with the
order of punishment if a proper case is made out for such interference.
The order of acquittal is an admitted fact on record and such material
is required to be examined by the learned Tribunal even in the cases
where the domestic enquiry has been held to be fair and proper and the
scrutiny is to be done in terms of Section 11-A of Industrial Disputes
Act, 1947. This Court is of the considered view that consideration of
the order of acquittal would be within the realm of consideration under
Section 11-A of the Industrial Disputes Act. Accordingly, the
argument of the Management that the order of acquittal in the criminal
case cannot be taken into consideration in the cases where the
domestic enquiry has been held to be fair and proper, is rejected.
27. Having held as aforesaid, it has to be considered as to whether,
the termination of the workman could have been set-aside merely on
account of acquittal in the criminal case.
28. This Court finds that the learned Tribunal has set-aside the
order of termination solely on account of acquittal of the workman in
the criminal case without taking up any scrutiny in terms of the
judgment passed by the Hon'ble Supreme Court in the case reported in
(2019) 10 SCC 367 (Karnataka Power Transmission Corporation
Limited Vs. C. Nagaraju and Another).
29. In Karnataka Power Transmission Corporation Limited
(Supra) the Hon'ble Supreme Court considered the arguments and
considered the various judgments and distinguished the judgments
passed in the case of "M. Paul Anthony Vs. Bharat Gold Mines Ltd."
reported in (1999) 3 SCC 679 and the judgment passed in the case of
"G.M. Tank Vs. State of Gujarat" reported in (2006) 5 SCC 446
which were relied upon by the High Court to set-aside the order of
dismissal and the Hon'ble Supreme Court relied upon the judgment
passed in the case of "Krishnakali Tea Estate Vs. Akhil Bharatiya
Chah Mazdoor Sangh" reported in (2004) 8 SCC 200. The entire
discussion runs from paragraphs 9 to 13 of the said judgment which
are quoted as under:
" 9. Acquittal by a criminal court would not debar an employer from
exercising the power to conduct departmental proceedings in
accordance with the rules and regulations. The two proceedings,
criminal and departmental, are entirely different. They operate in
different fields and have different objectives. In the disciplinary
proceedings, the question is whether the respondent is guilty of such
conduct as would merit his removal from service or a lesser
punishment, as the case may be, whereas in the criminal proceedings,
the question is whether the offences registered against him under the
PC Act are established, and if established, what sentence should be
imposed upon him. The standard of proof, the mode of inquiry and the
rules governing inquiry and trial in both the cases are significantly
distinct and different.
10. As the High Court set aside the order of dismissal on the basis of
the judgments of this Court in M. Paul Anthony and G.M. Tank, it is
necessary to examine whether the said judgments are applicable to the
facts of this case. Simultaneous continuance of departmental
proceedings and proceedings in a criminal case on the same set of
facts was the point considered by this Court in M. Paul Anthony case.
This Court was of the opinion that departmental proceedings and
proceedings in a criminal case can proceed simultaneously as there is
no bar. However, it is desirable to stay departmental inquiry till
conclusion of the criminal case if the departmental proceedings and
criminal case are based on identical and similar set of facts and the
charge in the criminal case against the delinquent employee is of a
grave nature which involves complicated questions of law and fact.
On the facts of the said case, it was found that the criminal case and
the departmental proceedings were based on identical set of facts and
the evidence before the criminal court and the departmental inquiry
was the same. Further, in the said case the departmental inquiry was
conducted ex parte. In such circumstances, this Court held that the ex
parte departmental proceedings cannot be permitted to stand in view
of the acquittal of the delinquent by the criminal court on the same set
of facts and evidence. The said judgment is not applicable to the facts
of this case. In the present case, the prosecution witnesses turned
hostile in the criminal trial against Respondent 1. He was acquitted by
the criminal court on the ground that the prosecution could not
produce any credible evidence to prove the charge. On the other
hand, the complainant and the other witnesses appeared before the
inquiry officer and deposed against Respondent 1. The evidence
available in the departmental inquiry is completely different from that
led by the prosecution in criminal trial.
11. Reliance was placed by the High Court on a judgment of this
Court in G.M. Tank whereby the writ petition filed by Respondent 1
was allowed. In the said case, the delinquent officer was charged for
an offence punishable under Section 5(1)(e) read with Section 5(2) of
the PC Act, 1988. He was honourably acquitted by the criminal court
as the prosecution failed to prove the charge. Thereafter, a
departmental inquiry was conducted and he was dismissed from
service. The order of dismissal was upheld by the High Court. In the
appeal filed by the delinquent officer, this Court was of the opinion
that the departmental proceedings and criminal case were based on
identical and similar set of facts. The evidence before the criminal
court and the departmental proceedings being exactly the same, this
Court held that the acquittal of the employee by a criminal court has
to be given due weight by the disciplinary authority. On the basis that
the evidence in both the criminal trial and departmental inquiry is the
same, the order of dismissal of the appellant therein was set aside. As
stated earlier, the facts of this case are entirely different. The acquittal
of Respondent 1 was due to non-availability of any evidence before
the criminal court. The order of dismissal was on the basis of a report
of the inquiry officer before whom there was ample evidence against
Respondent 1.
12. In Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor
Sangh this Court was concerned with the validity of the termination of
the services of workmen after acquittal by the criminal court. Dealing
with a situation similar to the one in this case, where the acquittal was
due to lack of evidence before the criminal court and sufficient
evidence was available before the Labour Court, this Court was of the
opinion that the judgment in M. Paul Anthony case cannot come to the
rescue of the workmen.
13. Having considered the submissions made on behalf of the
appellant and Respondent 1, we are of the view that interference with
the order of dismissal by the High Court was unwarranted. It is settled
law that the acquittal by a criminal court does not preclude a
departmental inquiry against the delinquent officer. The disciplinary
authority is not bound by the judgment of the criminal court if the
evidence that is produced in the departmental inquiry is different from
that produced during the criminal trial. The object of a departmental
inquiry is to find out whether the delinquent is guilty of misconduct
under the conduct rules for the purpose of determining whether he
should be continued in service. The standard of proof in a
departmental inquiry is not strictly based on the rules of evidence. The
order of dismissal which is based on the evidence before the inquiry
officer in the disciplinary proceedings, which is different from the
evidence available to the criminal court, is justified and needed no
interference by the High Court."
30. Thus, it has been laid down by the Hon'ble Supreme Court that
mere acquittal in criminal case does not result in setting-aside of the
order passed in disciplinary proceedings. Certain comparisons are
required to be made, the charges are to be compared, the evidences on
record are to be seen and then only such conclusion can be drawn.
31. This Court finds that the learned Tribunal, while setting aside
the order of termination of the workman, has not undertaken the
required exercise in terms of the judgment passed by the Hon'ble
Supreme Court reported in (2019) 10 SCC 367 (Supra) and on this
count also, the impugned award is perverse and cannot be sustained in
the eyes of law.
32. In view of the aforesaid findings, this Court is of the considered
view that the learned Tribunal has not at all considered the case in the
light of the provisions of Section 11-A of the aforesaid Act of 1947 in
the manner as held by the Hon'ble Supreme Court in the judgment
passed in the case of The Workmen of M/s. Firestone Tyre and
Rubber Co. of India (Pvt.) Ltd. (supra) and also in the light of the
judgment passed in the case reported in (2019) 10 SCC 367
(Karnataka Power Transmission Corporation Limited Vs. C.
Nagaraju and Another). This Court is not inclined to undertake the
exercise of appreciation of evidences and materials for the first time
under Article 226/227 of the Constitution of India. It is suffice to
observe that the impugned award is perverse, on account of the
aforesaid reasons.
33. This Court, in the limited jurisdiction against award passed by
the learned Industrial Tribunal, would not exercise the required
scrutiny in terms of Section 11-A of the Industrial Disputes Act for the
first time in writ jurisdiction which has not been done by the learned
Tribunal at all. The matter is required to be remanded to the learned
Tribunal for fresh consideration.
34. In view of the aforesaid findings, the impugned award dated
30.11.2010 passed by the Central Government Industrial Tribunal
No. I, Dhanbad is hereby set-aside and the matter is remitted back to
the learned Tribunal for fresh consideration in the light of the
observations made above.
35. This writ petition is accordingly disposed of.
36. Pending interlocutory application, if any, is closed.
37. Parties to appear before the learned Tribunal on 09.10.2023 at
11:00 a.m. Upon their appearance, the Learned Industrial Tribunal is
directed to proceed and pass the final award in accordance with law
within a period of one month from the date of their appearance. It is
observed that the learned Tribunal shall pass appropriate order for
legal assistance/legal aid to the workman through the District Legal
Services Authority considering the requirement of the workman.
38. Let this order be communicated to the court concerned through
"email/FAX".
(Anubha Rawat Choudhary, J.)
Pankaj/Mukul
