IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (L) No. 3795 of 2004
...
Employers in relation to the Management of Malkera Colliery of M/s. Tata
Iron and Steel Company Ltd., Dhanbad ... ... Petitioner
-V e r s u s-
The concerned Workman Ram Lakhan Dusadh ... Respondent.
...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
...
For the Petitioner : - M/s. Rajiv Ranjan, Abhay Kr. Mishra
and Faiz-ur-Rahman, Advocates.
For the Respondent : - none.
...
16/09.04.2010
In spite of service of notice upon the sole Respondent, he has not
chosen to appear even today, though this case was adjourned on several dates to
enable his appearance. As such, this writ application is taken up for disposal at the
stage of admission itself on the merits of the writ application.
2. The petitioner, in this writ application, has challenged the Award
dated-23.01.2004, of the Presiding Officer, Central Government Industrial Tribunal
No. 2, Dhanbad, passed in Reference Case no. 105 of 1998, whereby the learned
Tribunal has answered the Reference in favour of the concerned workman and
against the sole Respondent.
3. From the facts stated, It appears that the concerned workman, Ram
Lakhan Dusadh was originally appointed as a permanent Miner against permanent
vacancy at Malkhera Colliery of M/s. TISCO on 11.06.1970 and at the time of his
entry in service, on the basis of his declarations regarding his date of birth, the same
was recorded as 08.07.1930 in his service records. Later, upon a dispute raised by the
workman regarding the correctness of the entry of his date of birth in his service
records, the Management referred him for his medical examination for determination
of his age by the Medical Board. The Medical Board assessed the petitioner’s age and
the corresponding date of birth as 17.04.1937. In consonance with the assessment
made by the Medical Board, the workman’s date of birth in his service records was
corrected and recorded as 17.04.1937. However, the corresponding correction in his
Mining Sardar Certificate, was not made and the certificate continued to maintain the
date as 08.07.1930.
It appears that the petitioner subsequently produced a Mining
Sardar Certificate purported to have been issued in his name with a different date of
birth, mentioned, therein, to read as 08.07.1942. Upon a suspicion that the revised
date of birth may not have been recorded by the Board of Mining Examination, the
matter was referred to the Board and it was confirmed that no such correction in the
original Mining Sardar Certificate was made by the Board and that the workman has
himself carried out certain interpolations in the Certificate to dishonestly obtain
advantage in his favour.
4. On the charge that he has indulged in acts of misconduct in as much as
he has interpolated the Certificate issued by the Mining Board, a departmental
proceeding was initiated against him after serving him with the memo of charge and
after obtaining his explanations thereto. Though the Respondent-workman was
called upon to participate in the departmental proceedings but he did not appear and
consequently, the departmental proceeding continued ex parte and at the end of the
enquiry on the basis of the findings of the Enquiry Officer, the petitioner-
Management proceeded to terminate his services.
5. Being aggrieved with the order of termination, the workman raised an
industrial dispute, which upon being referred by the Central Government to the
Industrial Tribunal vide Reference Case No. 105 of 1998, the Industrial Tribunal, as
mentioned above, passed the impugned Award against the Management holding that
the termination of the workman’s service was illegal.
6. Assailing the findings recorded by the Tribunal in the impugned
Award, Mr. Rajiv Ranjan, learned counsel for the petitioner would argue that the
Tribunal has committed a patent illegality in as much as, though it has held that the
enquiry as conducted against the concerned workman was fair, proper and in
accordance with the principles of natural justice, yet it has proceeded to discuss the
entire evidences adduced before the Enquiry Officer and has recorded a finding
totally different from the findings of the Enquiry Officer. Learned counsel argues
that this practice has been highly deprecated in several judgments of the Supreme
court and in this context refers to a judgment of the Apex court in the case of
General Secretary, South Indian Cashew Factories Worker’s Union-versus-
Managing Director, Kerala State Cashew Development Corporation Ltd. and others
reported in 2006 (110) FLR 492 SC. Learned counsel refers also to a Division Bench
judgment of this Court in the case of Management of M/s. Usha Breco Ltd.-versus-
Presiding Officer, Labour Court, Jamshedpur and others reported in 2005 LAB. I.C.
986 JHC.
7. From perusal of the impugned Award, I do find that after framing the
preliminary issues regarding the fairness and propriety of the domestic enquiry, the
Tribunal has recorded its finding that the domestic enquiry was held in a fair and
proper manner and also in accordance with the principles of natural justice.
Thereafter, the Tribunal proceeded to discuss the evidences on record, and thereby
finding fault with the findings recorded by the Enquiry officer.
This, as rightly pointed out by the learned counsel for the
petitioner, could not have been indulged by the Tribunal, as has been held by the
Supreme Court in the case of General Secretary, South Indian Cashew Factories
Worker’s Union (Supra).
8. Even otherwise, from the observations recorded in the impugned
Award, it appears that the specific charge against the workman was that he had
indulged in acts of misconduct by committing fraud and acts of dishonesty, which is
a misconduct in terms of Clause 19 (2) of the Company’s Standing Orders. In proof
of such charge, the Enquiry Officer has relied upon the documents, which the
workman himself had produced. The findings recorded by the Enquiry officer on the
basis of such evidence, which was not controverted by the workman in course of the
enquiry, ought not to have been interfered with by the Tribunal by exceeding its
jurisdiction.
9. In the light of the above facts and circumstances, I find merit in this
writ application. Accordingly, the same is allowed. The impugned Award
dated-23.01.2004 passed by the Presiding Officer, Central Government Industrial
Tribunal No. 2, Dhanbad in Reference Case no. 105 of 1998 is hereby set aside.
(D.G.R. Patnaik, J.)
APK