Chief General Manager Johila Area ... vs Chandramani Tiwari
2021 Latest Caselaw 7496 MP

                                                         W.P. No.4982/2015

                              -:- 1 -:-




  HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                    JABALPUR

Case No.                      W.P. No. 4982 OF 2015
Parties Name                         Chief General Manager, S.E.C.L
                                                   vs.
                                           Chandramani Tiwari
Date of order                         17/11/2021
Bench Constituted             Single Bench : Justice Purushaindra
                              Kumar Kaurav
Order passed by               Justice Purushaindra Kumar Kaurav
Whether approved for          Yes.
reporting
Name of counsel for parties   For Petitioner: Shri Vikram Singh,
                              Advocate
                              For Respondent : Respondent in person.
Law laid down                 1. The High Court should not exercise its
                              power under Article 227 of the
                              Constitution of India as an appellate Court
                              or re-appreciate evidence and record its
                              finding unless there are serious errors of
                              law on the face of record.
                              2. The High Court could not go into
                              reliability/adequacy of evidence, or
                              interfere if there is some legal evidence on
                              which findings are based, or correct error
                              of fact however grave it may be.
                              3. Industrial Disputes Act is a social
                              welfare legislation.
                              4. The wrongful termination of service,
                              reinstatement with continuity of service
                              and back wages is the normal rule.
                              However, the said rule is subject to rider
                              that while deciding the issue of
                              backwages, the adjudicating authority or
                              the Court may take into consideration the
                              length        of      service     of     the
                              employee/workman, the nature of
                              misconduct found proved against the
                              workman, the financial condition of the
                                                                W.P. No.4982/2015

                                  -:- 2 -:-




                                  management and similar other factors.
                                  5. If the Labour Court/Industrial Tribunal
                                  finds that the employee or workman is not
                                  at all guilty of any misconduct or that the
                                  management had foisted a false charge,
                                  then there will be ample justification for
                                  award of full back wages. In such a case,
                                  the superior Courts should not interfere
                                  with the award so passed by the Labour
                                  Court, etc., merely because there is a
                                  possibility of forming a different opinion
                                  on       the     entitlement      of     the
                                  employee/workman to get full back wages
                                  or the management's obligation to pay the
                                  same.
                                  6. The enquiry which was conducted
                                  against the employee was held to be
                                  illegal by the CGIT. This is a clear case of
                                  wrongful termination of service. There is
                                  no justification to give premium to the
                                  management of his wrongdoings by
                                  relieving him of the burden to pay to the
                                  employee/workman his dues in the form
                                  of full back wages. The CGIT has found
                                  that the employee's termination was
                                  wrongful      and     has    directed    for
                                  reinstatement and therefore, it is quite
                                  reasonable that the employee, who by
                                  now, has been superannuated, should get
                                  50% back wages and the same is the order
                                  of the CGIT, therefore, the same is also
                                  not interfered with.
Significant paragraph                   11 to 13 & 17 to 20.                  -
numbers

                                ORDER

(17/11/2021) This petition under Article 227 of the Constitution of India, is directed

against an award dated 20.10.2014, passed by the Central Government

Industrial Tribunal-cum-Labour, Jabalpur (hereinafter referred to as W.P. No.4982/2015

-:- 3 -:-

"CGIT"). The CGIT vide impugned award has held that the action of

Management of South Eastern Coalfields Ltd. (in short hereinafter referred to

as "Management"), Johila Area, in terminating the services of the

respondent (in short hereinafter referred to as "Workman"), is illegal and

hence, the management was directed to reinstate the workman with

continuity of service and 50% back wages.

2. Brief facts necessary for the decision of the petition are as under:-

(i) The management is one of the subsidiaries company of

Coal India Ltd. (A Government of India undertaking) under the

Ministry of Coal. The workman was appointed as General

Mazdoor, Category-I on 23.8.1983 by the management. The

workman was the President of Trade union and had been raising

various grievances relating to Union from time to time.

(ii) On 17.2.2000, on account of one incident at mine, two

workmen lost their lives. The issue was taken-up at the higher

level and complaints were made against some of the responsible

officers of the management. Thereupon, the cognizance was

taken by the Executive Magistrate, Pali, District-Umaria.

(iii) On 28.11.2000, charge-sheet was given to the workman

alleging therein that he was habitual absentee and during

September, 1999 to November, 2000, he attended the work only W.P. No.4982/2015

-:- 4 -:-

for 46 days and including EL/CL etc., his total presence was 109

days, which is violative under Clauses 26.24 and 26.30 of

the Standing Order and, therefore, the same falls within the

definition of "Misconduct".

(iv) The workman replied to the charge-sheet on 28.11.2000/

9.12.2000 denying all the allegations and he had stated that the

attendance shown in the charge-sheet was incorrect. According

to him, if the attendance is compared or verified from register

Form 'C', the same would make it clear that the allegations in

the charge-sheet were incorrect. According to him, on account of

his wife's and his own illness, he sought certain leaves without

pay and was availing medical facilities. He denied that there was

any violation of the Standing Order as alleged in the charge-

sheet.

(v) Vide memorandum dated 16.12.2000, the management did

not find the explanation of the workman as satisfactory and took

a decision to proceed with the regular departmental enquiry. On

16.12.2000, Shri K.D. Jain, Mines Superintendent, Pali was

appointed as Enquiry Officer and Shri Rizwan, Time Keeper,

Birsinghpur Colliery was appointed as Management

Representative.

(vi) After an enquiry, on 7.9.2002, the Enquiry officer W.P. No.4982/2015

-:- 5 -:-

submitted his report. He concluded that between 6.9.1999 to

26.11.2000, the workman attended the office only for 49 days

and has availed 22 days CL/Rest and he could not satisfactorily

explain his absence from duty, therefore, the charges were found

proved.

(vii) On 10.10.2002, the management supplied copy of the

enquiry report to the workman and sought for his explanation.

On 19.10.2002, the workman submitted his explanation. He has

alleged certain malafides against S.R. Mishra, Manager and

Enquiry Officer on account of some complaints lodged against

the said officer. He stated that the enquiry is vitiated on account

of not following the principles of natural justice and non

production/supply of relevant register etc. and, therefore, the

entire matter was required to be re-enquired by the independent

enquiry officer.

(viii) Vide order dated 7.12.2002, the management terminated

the services of the workman w.e.f. 7.12.2002.

(ix) The workman preferred an appeal before the appellate

authority, which was also dismissed vide order dated 22.8.2003.

(x) Eventually on account of the labour dispute, the

Government of India, Ministry of Labour vide order dated

13.5.2004 found that an industrial dispute exists between the W.P. No.4982/2015

-:- 6 -:-

management and its workmen. The Government of India

considered it desirable to refer the said dispute for adjudication

and hence, in exercise of power conferred by Clause (d) sub-

section (1) and sub-section (2A) of Section 10 of the Industrial

Disputes Act, 1947 (hereinafter referred to as "Act of 1947"),

the following dispute was referred for adjudication to the CGIT:-

"The Schedule Whether the action of the management of SECL, Johilla Area in terminating from services of Sh. Chandramani Tiwari S/o Sh. B.P. Tiwari, General Mazdoor w.e.f. 7.12.2002 is legal and justified? If not, to what relief he is entitled to."

(xi) The parties submitted their statement of claims and adduced the

evidence before the CGIT.

(xii) On 25.3.2013, the CGIT had decided the preliminary issue

against the employer holding that the departmental enquiry conducted

by the management against the workman was illegal and improper.

However, liberty was given to the management for adducing evidence

to prove misconduct of the delinquent workman. Thereafter, the final

award has been passed which is under challenge in this petition.

3. Learned counsel appearing for the management has vehemently argued

that the impugned award is illegal and perverse. From perusal of para 10 of

the impugned award, it is seen that the evidence of Management witness Shri

Mundra clearly proved the absence from duty from July, 2000 to November, W.P. No.4982/2015

-:- 7 -:-

2000 and, therefore, there was no occasion for the CGIT to interfere into the

order of termination. It has also been stated that entries in the Form 'G'

register wherein month-wise attendance of each workman is available and

Form 'H' register where the leave balance and leave availed by the workmen

are mentioned, were filed before the CGIT which were wrongly ignored. It is

the stand of the management that the management provides all best medical

facilities at the colliery level itself and the Central hospital is also

functioning at area level and in case of any emergency, the workmen are

referred to specialized hospital situated at metropolitan city and the entire

expenditure is borne by the management, therefore, there was no occasion

for the workman to avail unauthorized leave. The petitioner has also

criticized the award on the ground that grant of 50% back wages is not

warranted in view of the law laid down by the Hon'ble Supreme Court in the

case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak

Mahavidyala (D.Ed) & Others1.

4. The workman while appearing in person has supported the impugned

award and has submitted that the order of termination was issued with

malafide intent and with an object to teach him a lesson as he was raising

voice against the management on behalf of the trade union. According to

him, the issue of death of two workmen was pending before the Executive

Magistrate, Pali, District-Umaria, where the complaint was being examined.

1    (2013) 10 SCC 324
                                                                W.P. No.4982/2015

                                   -:- 8 -:-

He has also stated that on account of his pro-activeness he was threatened by

the Enquiry Officer of taking revenge to see that he would be dismissed from

service. He made a request for change of the Enquiry Officer but the same

was not adhered to. According to him, his signature was forged about the

attendance and he was not given fair opportunity of his defence. Original

attendance register has neither been produced before the Enquiry Officer nor

before the Tribunal. There is violation of principles of natural justice. He has

already suffered immense mental agony being out of job since 7.12.2002 and

the entire action of management was arbitrary.

5. This Court has heard the parties at length and has also carefully

perused the record.

6. The CGIT vide order dated 25.3.2013 had already decided the question

about the legality of the departmental enquiry conducted by the management

as a preliminary issue. The enquiry was held to be illegal. It was recorded in

para 5 of that order that the enquiry was conducted in absence of co-worker

against the workman and he was not given fair and proper opportunity.

Management witnesses have admitted that in Form 'C' in which attendance

or the workmen are maintained for the relevant period was not produced in

original. It is apposite to reproduce para 5 and 6 of the aforesaid order dated

25.3.2013, which is as under:-

W.P. No.4982/2015

-:- 9 -:-

"5. Workman has examined witness Shri Hiralal Sharma and to support the grievance of Ist party workman that on complaint of Ist party workman about accident, the proceeding was initiated. The Ist party workman filed affidavit of his evidence. He was cross-examined at length. He had denied suggestions of the management in the crossexamination. Management has filed affidavit of his witness Shri S.J.Mukherjee and witness was also cross-examined at length. Only zerox copies of the Enquiry proceedings are produced. The entire record of Enquiry proceedings is not produced in Court, reasons not understood. In cross-examination of management's witness by workman, it is noticed that in Form "C" in which attendance of employee is maintained, for period of November 2000 was not produced. The cross-examination of management's witness further shows that entire Form "C" about attendance during the relevant period is not produced. During recording statement of management witness in cross-examination, it was told by Enquiry Officer that the same shall be produced lateron. When the charge against the delinquent workman was about his unauthorized absence, Ist party workman was alleging that his attendance was scored out from the register and the bonus documents were prepared. Under such facts, it would have been proper to produce the register of attendance in Form "C" maintained by the management. The documents on record shows that Form "C" for November 2000 is not produced. The original attendance record is not produced. Therefore the enquiry conducted against Ist party workman cannot be said proper. Proper procedure was not followed while recording evidence of management's witness. Though the workman expressed his desire to be represented by a coworker , the co-worker was not present at the time of cross-examination of management's witness. The reason is not understood. The enquiry was conducted in absence of co-worker. For the above reasons I hold that enquiry conducted against the workman is not fair and proper.

6. The management in Para-15 of its Written Statement has requested permission to prove misconduct of delinquent workman adducing evidence. The legal position in this regard is settled that when enquiry is W.P. No.4982/2015

-:- 10 -:-

vitiated , permission cannot be refused for proving the misconduct in the Court by management. For above reasons, management is permitted to adduce evidence to prove charges against the delinquent workman."

7. The aforesaid order remained unchallenged till date, therefore, the

finding to the effect that the enquiry was illegal, has attained finality.

8. Coming to the legality of the impugned award dated 20.10.2014, it is

seen that in para 9 of the said award, a categorical finding is recorded that the

management's witness Shri P.S. Mundra in his cross-examination has stated

that register for the period September, 1999 to 2000 is not available. It has

also been recorded that the evidence of management's witness discussed

above only covers unauthorized leave of workman during the period July,

2000 to November, 2000 for 24 days and rest of the period of unauthorized

absence of workman was not covered by any of the witnesses of

management as well as documents Ex.M/19 to Ex.M/21. In para 10, it has

been clearly held that it was difficult to hold that the absence of the workman

from duty was unauthorized. Para 9 and 10 of the impugned award are

reproduced as under:-

"9. After enquiry against workman was found vitiated, management of IInd party has to prove the charges against workman. Management has filed affidavit of evidence of Shri G.S.Parihar, the attendance of workman is shown 5 days during the period 16-7-00 to 22-7-00. Removal of workman is shown from 6-12-02. The charges against workman are restricted to unauthorized absence for the period Sept 99 to Nov- 2000. Thus affidavit of G.S.Parihar shown 5 days W.P. No.4982/2015

-:- 11 -:-

working during 16-7-00 to 22-7-00, 1 day working during 13-7-00 to 5-8-00. Rest of the period of unauthorized absence is not covered by chargesheet issued to workman. The affidavit of management's witness Shri P.S.Mundra is filed covering same period. It is surprise to say that evidence of Shri P.S.Mundra covers attendance of workman during Sept 99 to November 2000 for 46 days. From evidence of witness of management, document Exhibit M-19 to M-33 are proved. Management's witness Shri P.S. Mundra in his cross-examination says that register for the period Sept 99 to Nov-2000 is not available. Only register for the period 5 year was available, register for remaining period are destroyed. That Form C register for 9-7-00, November 07 was brought, its copies are produced. Entries dated 29-10-00, 4-11-00 shows workman was on EL. The form C register for onwards period was not available. The termination order of Ist party workman was issued by Shri Sarkar Sub Area Manager. The termination order was not issued by Lallan Giri. He was not posted in the mine during said period. Rest of cross examination of witness of management is devoted on the point whether order bears signature of General Manager or not, whether witness was given intimation. Workman had passed Data Entry Exam and workman was released for said examination. Said part of evidence in cross-examination has no direct bearing to the unauthorized absence of workman. The evidence of management's witness discussed above only covers unauthorized absence of workman during the period July 2000 to November 2000 for 24 days, rest of the period of unauthorized absence of workman is not covered in evidence of above witness of management as well documents Exhibit M-19 to M-21. Document Exhibit M-30 relates to transfer of workman from Pinoura Project to Birsinghpur Project. M-31 relates to request of workman for light duty was not accepted. Exhibit M-32 relates to treatment of workman in hospital. He should approach Doctor in hospital.

10. Documents also do not relate to alleged unauthorized absence of workman form duty. Thus it is clear that from evidence of management's witness Shri W.P. No.4982/2015

-:- 12 -:-

Mundra only his absence from duty from July 2000 to November 2000 is covered. The unauthorised absence of Workman from September 99 to June 00 cannot be proved from evidence of witness as Form C register of above period was not available. The management's witness Shri G.S. Parihar was not produced for cross- examination. His evidence cannot be considered. To conclude, evidence adduced by management about unauthorized absence from July 2000 could not be proved for want of record i.e. Form C register. Thus charges alleged against workman cannot be proved. Rather as per documents corroborating evidence of management's witness Shri P.S.Mundra, workman was on duty only for 24 days during July to October 2000, he was absent from duty. From his evidence, it is difficult to hold that the absence of workman from duty was unauthorized as said witness in his cross- examination says workman was on EL during 29-10-00 to 4-11-2000 and medical bill register was not brought by him therefore evidence adduced by management is not sufficient to prove charges against workman. Therefore I record Point No.1 in Negative."

9. Even at the time of hearing of this petition also, no material is shown,

no specific perversity is pointed out so as to contradict the findings of facts

recorded by the CGIT.

10. Learned counsel for the petitioner, however, relied upon the judgments

of the Supreme Court in the cases of State of Andhra Pradesh Vs. S. Sree

Rama Rao2; The State of Karnataka Vs. N. Gangaraj3; High Court of

Judicature at Bombay Through its Registrar Vs. Shashikant S. Patil and

another4; State Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwaya 5 as 2 1963 AIR 1723 3 (2020) 3 SCC 423 4 1999 Supp (4) SCR 205 5 (2011) 4 SCC 584 W.P. No.4982/2015

-:- 13 -:-

also on the judgment passed by the High Court of Allahabad, Lucknow

Bench in the case of Rakesh Kumar Pandey Vs. State of U.P. through

Principal Secretary, Department of Revenue LKO and others 6 and urged

that the writ petition be allowed and the order passed by the CGIT be set

aside.

11. It is settled law that the High Court normally should not exercise its

power under Article 227 of the Constitution of India as an appellate Court or

re-appreciate evidence and record its findings on the contentious points. It is

only if there is a serious error of law or the findings recorded suffer from

error apparent on record, the High Court can certainly quash such an order.

The power of interference under Article 227 is to be kept to the minimum to

ensure public confidence in the functioning of the Tribunals and Courts

subordinate to the High Court. (See : Ishwar Lal Mohanlal Thakkar Vs.

Paschim Gujarat Vij Company Limited and another7.

12. Under Articles 226 and 227 of Constitution of India, the High Court

should not venture into reappreciation of evidence or interfere with

conclusions in enquiry proceedings if the same are conducted in accordance

with law, or go into reliability/adequacy of evidence, or interfere if there is

some legal evidence on which findings are based, or correct error of fact

however grave it may be, or go into proportionality of punishment unless it 6 Service Single No.18642/2018 dated 20.2.2019 7 (2014) 6 SCC 434 W.P. No.4982/2015

-:- 14 -:-

shocks conscience of Court. (See : Union of India and others Vs. P.

Gunasekaran8)

13. The High Court can interfere in its writ jurisdiction only if

jurisdictional error is committed by the Labour Court/CGIT. Besides, it must

proceed on the basis that Industrial Disputes Act is a social welfare

legislation. (See : Naresh Kumar Thakur and others Vs. Principal/

Executive Director, Civil Aviation Training College, Allahabad9)

14. So far as the judgments relied upon by the learned counsel for the

petitioner are concerned, they are also in the same line. None of the

judgments takes any different view as has been stated above.

15. In the instant case, the CGIT has considered the entire evidence and

material available on record and has passed a well reasoned award giving full

opportunity of hearing to the Management to prove the misconduct. The

findings as reproduced in preceding paragraphs clearly show that there is no

perversity or jurisdictional lapse which can be said to be so grave so as to

call for interference under Article 227 of Constitution of India and hence, any

interference is declined.

16. So far as the grant of back wages is concerned, a perusal of the record

shows that employee in his affidavits dated 12.8.2004 and 20.10.2014 before 8 (2015) 2 SCC 610 9 (2016) 15 SCC 701 W.P. No.4982/2015

-:- 15 -:-

CGIT has stated that he was not employed elsewhere. The Management has

not taken any stand in its statement of claim that the workman was gainfully

employed elsewhere and in this regard, neither any document has been

produced nor any evidence is laid.

17. The law on the question of award of back wages has taken some shift.

It is now ruled in cases that when the dismissal/removal order is set

aside/withdrawn by the Courts or otherwise, as the case may be, directing

employee's reinstatement in service, the employee does not become entitled

to claim back wages as of right unless the order of reinstatement itself in

express terms directs payment of back wages and other benefits. (See M.P.

State Electricity Board Vs. Jarina Bee (Smt.)10).

18. The Supreme Court in the case of Deepali Gundu Surwase (supra),

has laid down certain propositions from its earlier judgments while deciding

the issue of back wages. It has been held that wrongful termination of

service, reinstatement with continuity of service and back wages is the

normal rule, however, the said rule is subject to the rider that while deciding

the issue of back wages, the adjudicating authority or the Court may take into

consideration the length of service of the employee/workman, the nature of

misconduct found proved against the workman, the financial condition of the

management and similar other factors. Para 22 of the aforesaid judgment is

10 (2003) 6 SCC 141 W.P. No.4982/2015

-:- 16 -:-

reproduced hereunder:-

"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."

19. In the case of Deepali Gundu Surwase (supra), the Supreme Court

has further held that an employee who is desirous of getting back wages is

required to either plead or at least make a statement before the adjudicating W.P. No.4982/2015

-:- 17 -:-

authority or the Court of first instance that he/she was not gainfully

employed or was employed on lesser wages. If the management wants to

avoid payment of full back wages, then it has to plead and also lead cogent

evidence to prove that the employee/workman was gainfully employed and

was getting wages equal to the wages he/she was drawing prior to the

termination of service. Once the employee shows that he was not employed,

the onus lies on the management to specifically plead and prove that the

employee was gainfully employed and was getting the same or substantially

similar emoluments. If the Labour Court/Industrial Tribunal finds that the

employee or workman is not at all guilty of any misconduct or that the

management had foisted a false charge, then there will be ample justification

for award of full back wages. In such a case, the superior Courts should not

interfere with the award so passed by the Labour Court, etc., merely because

there is a possibility of forming a different opinion on the entitlement of the

employee/workman to get full back wages or the management's obligation to

pay the same.

20. In the instant case, the CGIT has awarded 50% back wages on the

basis of the facts and circumstances of the case. The enquiry which was

conducted against the employee was held to be illegal by the CGIT vide its

order dated 25.3.2013 and even after giving opportunity to the management

to prove the misconduct, the management has failed to establish during the

proceedings before the CGIT and therefore, this is a clear case of wrongful W.P. No.4982/2015

-:- 18 -:-

termination of service. In the case of wrongful/illegal termination of service,

the wrongdoer is the management and sufferer is the employee/workman and

there is no justification to give premium to the management of his

wrongdoings by relieving him of the burden to pay to the

employee/workman his dues in the form of full back wages. Since the

reinstatement itself is ordered with 50% back wages, therefore, the same

cannot be considered to be unreasonable. The CGIT has found that the

employee's termination was wrongful and has directed for reinstatement and

therefore, it is quite reasonable that the employee, who by now, has been

superannuated, should get 50% back wages and the same is the order of the

CGIT, therefore, the same is also not interfered with.

21. In view of the aforesaid analysis, I do not find any merit in the instant

petition and the same is accordingly dismissed. No orders as to cost.

(PURUSHAINDRA KUMAR KAURAV) JUDGE

pp./nitesh

Digitally signed by NITESH PANDEY Date: 2021.11.17 16:06:44 +05'30'