Orissa High Court

The Management vs Prafulla Kumar Sarangi And Others on 5 January, 2023

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                         WP(C) No.11904 of 2022

     The Management, Neelachal                ....              Petitioner
     Hospital Pvt. Ltd. BBSR
                                   -versus-

     Prafulla Kumar Sarangi and others ....               Opposite Parties


     Advocates appeared in this case :

     For Petitioner :         Mr. Lalit Mohan Nanda, Advocate
                              Mr. S. L. Kumar, Advocate

     For Opposite Parties : Mr. S. Mohanty, Advocate
                            Mr. A. U. Senapati, Advocate
                            Mr. B. S. Rayguru, Advocate
                            Mr. B. Mishra, Advocate
                            Mr. P. Ch. Khuntia, Advocate


      CORAM:

      JUSTICE ARINDAM SINHA
      JUSTICE SANJAY KUMAR MISHRA

                           JUDGMENT

05.01.2023

ARINDAM SINHA, J.

1. Mr. Nanda, learned advocate appears on behalf of

petitioner(Management). He had moved the writ petition before us on

WP(C) no.11904 of 2022 // 2 //

11th November, 2022. Text of order made that day is reproduced

below.

"1. Mr. Nanda, learned advocate appears on behalf of petitioner. He submits, his client is the Management. His client has another writ petition against wife of the workman. By impugned award dated 30th March, 2022, back wages and retirement benefits were directed to be given to the workman (husband).

2. He submits, on 3rd June 2019, in the morning shift, opposite party-workman created disturbance in the premises and locked main gate. This untoward situation was not conducive to hold enquiry. The workman was dismissed not amounting to retrenchment under section 2(oo) in Industrial Disputes Act, 1947.

3. He submits, the labour Court ought to have allowed his client to lead evidence in the circumstances. This was not done and hence, impugned award be set aside.

4. Mr. Mohanty, learned advocate appears on behalf of the workman. He supports finding in the award that the Management did not take any step to lead independent evidence, to prove the charge on merit as well as to prove its action of passing the order of dismissal, dispensing with conducting domestic enquiry.

5. Leave is granted for parties to file additional affidavits disclosing depositions and exhibits in the reference. Copies are to be exchanged. The affidavits will be accepted on adjourned date.

6. List on 5th December, 2022."

// 3 //

2. The writ petition has been called on for hearing today. Mr.

Nanda submits, I.A. no.17436 of 2022 has been filed by his client

disclosing the written statement and evidence adduced by and on

behalf of the Management. He submits, in the written statement there

were pleadings stating that it was not possible to conduct inquiry

because of the extraordinary situation created, inter alia, by opposite

party no.1 (workman). He submits, the workman indulged in

disorderly conduct on 3rd June, 2019 by bringing goons into the

hospital premises and locking the main gate. On the very next date,

i.e., 4th June, 2019 his client dismissed the workman. It was absolutely

necessary to do so for restoring order and normalcy in the hospital

premises. On query from Court he draws attention to prayers in the

written statement, quoted below.

"Under the above circumstance, it is respectfully prayed by the First Party-Management that the learned Court may gracious enough

(i) to entitle the management to straight away adduce evidence before the Tribunal justifying its action,

(ii) to consider that evidence so adduced before it on merits, and

(iii) give a reasoned decision thereon.

// 4 //

for which act of kindness as in duty-bound the First Party shall ever pray."

3. He submits, in spite of there having been on record such

pleadings and evidence, the Court below disregarded same to say that

surprisingly his client did not take any step to lead independent

evidence to prove the charge on merit as well as to prove its action of

passing the order of dismissal while dispensing with conduct of

domestic inquiry. On that basis impugned award dated 30th March,

2022 was made directing payment of back wages and all entitlements

in view of the workman having achieved age of superannuation.

4. Mr. Mohanty submits, there was no inquiry conducted. In the

circumstances, it cannot be said that his client is guilty of any

misconduct. He reiterates finding in the award that the Management did

not take any step to lead independent evidence, to prove the charge on

merit as well as to prove its action of passing the order of dismissal,

dispensing with conducting domestic enquiry. By impugned award the

Court below correctly found in favour of his client and directed

accordingly. There should not be interference. He submits further, (

assuming though not admitting the Management had adduced

evidence, such was through interested Management witnesses, not

independent witnesses.

// 5 //

5. On query from Court Mr. Mohanty hands up evidence

adduced by his client, sole witness in support of his case in the Court

below. On further query from Court regarding omission by his client

to even refer therein to the dismissal order and its grounds, being that

his client had indulged in disorderly conduct on 3rd June, 2019, Mr.

Mohanty prays for adjournment to file additional affidavit. The prayer

is rejected since, under no circumstances can his client say that the

evidence he seeks now to produce was, notwithstanding exercise of

due diligence, not within his knowledge at the time of the proceeding.

6. Question to be answered by this Court is whether the award is

perverse in not having taken into account relevant evidence available

in the materials on record before the Court below. For the purpose the

facts need to be looked at. The dismissal order is dated 4th June, 2019.

There is no dispute regarding existence of it. Two paragraphs from

the dismissal order are extracted and reproduced below.

"WHEREAS on 03.06.2019 morning shift, you along with 4-5 goons/anti-socials and accompanied by your spouse, Kailash Kumari Tripathy. Ward Attendant, (who is incidentally a co-employee, and for whom separate Charges are being framed) hurled abusive language and threatened Shri Subhendu Pattanaik, Security Guard, and Shri Ashok Nayak, Security Supervisor with dire consequence and locked the Main Entrance Gate of the

// 6 //

Hospital thus causing serious disruption in entry/exit, and creating a commotion in and around the Hospital premises."

"AND WHEREAS in view of the extraordinary situation created by you, the Management finds that it is not reasonably practical to hold an enquiry since holding of the enquiry will take some time and with this attitude of yours, the Management is convinced that you will also continue to indulge in such violent activities in future, which may seriously disrupt the functioning of the Hospital apart from endangering the life and property of the organisation."

The evidence on affidavit, filed by the workman in the proceeding,

was notarized on 29th November, 2021. Cross-examination by the

management on the affidavit evidence took place on 21st December,

2021. As aforesaid, there is no statement in the affidavit regarding

allegation of gross misconduct committed on 3rd June, 2019 nor the

dismissal order of the next date (4th June, 2019). Deposition in cross-

examination of the workman is reproduced below.

"17. I joined under the management as Attendant on 7th May, 2007. Prior to that I was working as paper hawker. I got married to Kailash Tripathy 35 years ago. I knew her prior to my service under the management. I never take liquor. I take betel. There was no dispute between Kailash Tripathy and the management at any point of time. I had never quarreled with the management on

// 7 //

3.6.2019. I had approached the management for 20 days in connection with this case. Since 4.6.2019 I am unemployed. I am not engaged anywhere. I have no source of income.

18. It is not a fact that I am deposing falsehood."

(emphasis supplied)

7. The Management produced three witnesses (MWs). MW-1

was working as security supervisor. MW-2 was working as security

in-charge and MW-3 as sanitation (sweeper) supervisor. All three

claimed to have been eye witnesses to the incident happened on 3rd

June, 2019. Their affidavit evidence could not be shaken in cross-

examination by the workman.

8. The incident of misconduct was alleged in the dismissal order

dated 4th June, 2019, to have happened the day before on 3rd June,

2019. It does appear from deposition in cross-examination of the

workman that he claimed to have been unemployed since 4th June,

2019. Therefore, this was good evidence that the dismissal order was

effective on the date of it. The affidavit evidence of the workman had

been notarized on 29th November, 2021. It is clear that the omission to

mention the incident of 3rd June, 2019 as well as the dismissal order

dated 4th June, 2019, containing allegations about it, was deliberate. In

the circumstances, where the workman did not deal with the ground

// 8 //

alleged for his dismissal that, itself, was clear admission and good

evidence of the incident before the Court below. No cross-

examination was necessary. On the top of that there were three

management witnesses, who had stated before the Court below to

have been eye witnesses of the incident. The workman having cross-

examined them and on perusal of the depositions we find, he could

not elicit a contradiction to try and shake their testimony.

9. The two separate allegations of the management were that

there was gross misconduct committed by the workman on 3rd June,

2019 and secondly, it was not possible to hold inquiry and, therefore,

dismissal the next day on 4th June, 2019. Both were clearly alleged in

the dismissal order, as would appear therefrom, extracted and

reproduced above. We are convinced that same was relevant material

for the Court below to have considered. So far as contention of the

workman on requirement of proof of the allegation of misconduct by

independent evidence is concerned, the requirement was not adverted

to by the Court below in making the remark regarding independent

evidence. There is no finding that the Management witnesses were or

appeared to be interested witnesses and thus their evidence was not of

value, relevance or weight. When the three management witnesses

// 9 //

had deposed on affidavit to have been eye witnesses and such

deposition could not be contradicted or shaken in cross-examination,

it became good evidence before the Court below.

10. Law is well settled that where there has not been domestic

inquiry by the management in the matter of award of major penalty,

the inquiry could be held in the reference, if it is so prayed for by the

Management. The prayer was there and the Court below referred to

the controversy regarding it but did not take into account the evidence

that was there before it.

11. In light of the facts and evidence before the Court below, it

coming to finding that the Management did not take any step to lead

independent evidence to prove the charge on merit as well as prove its

action of passing order of dismissal while dispensing with conducting

domestic inquiry, appears to be result of complete non-application of

mind leading to perversity in the award. We extract and reproduce the

paragraph from impugned award.

"Though the first party management in its written statement has requested this Court to conduct an inquiry into the matter and arrive at a reasonable decision, but surprisingly did not take any step to lead independent evidence to prove the charge on merit as well as to prove its action of passing the order of dismissal while dispensing

// 10 //

with the conducting of domestic enquiry as per the mandates of the Hon'ble Apex Court in the above cases."

12. Several judgments of the Supreme Court were referred to

and relied upon in impugned award, for the Court below to have

inferred two mandates. Firstly, failure to make inquiry before

dismissal or discharge of workman can be justified by leading

evidence before the Labour Court. Secondly, where no inquiry

was held or inquiry was found to be defective, the employer shall

have to be given a chance to adduce evidence before the Tribunal

for justifying its action provided the employer asks for the

permission of the Tribunal to adduce fresh evidence to justify its

action. As such, there was no judgment referred to or relied upon

by the Court below saying that a management in seeking to

justify its action by adducing evidence in the reference had to do