JUDGMENT
S.B. Sinha, J.
1. This application is directed against the award dated October 6, 1986 (pronounced on November 20, 1986) as contained in Anneuxre-4 to the writ application, passed by the Presiding Officer Labour Court, Bokaro Steel City Dhanbad (respondent No. 1) in Reference Case No. 7/83 whereby and whereunder he answered the reference in favour of the workman by awarding a relief of reinstatement with half backwages.
2. The basic facts of this case are not in dispute.
3. The petitioner-company is owner of a factory engaged in manufacture of explosives at Gomia which is a ‘public utility service’ within the meaning of the Industrial Disputes Act, a protected place within the meaning of Bihar Protected Places Act and also comes within the purview of the definition of ‘essential services’ within the meaning of the provisions of the Essential Services and Maintenance Act. The explosive area in the factory premises of the petitioner-company is the most sensitive area inasmuch dangerous chemicals prone to explosion are handled therein and the same is controlled by the Blasting Department of the petitioner-company. According to the petitioner, maintenance of utmost discipline and systematic functioning of the operations of the manufacturing plants of Blasting Department in an orderly manner is of vital importance for the safety of the plants as also the workers employed in such manufacturing operations.
4. Admittedly, the agreement was entered into by and between the Management and the workmen on or about March 20, 1980 commonly known as Work Reward Agreement as a result whereof certain incentives were granted to the workmen and the same continued for two years. In the year 1982, the Management installed a Rollex plant in the Blasting Department in order to boost up its over all production, as a result whereof more incentive wages were being received by the workmen for about three months. However, in the month of December, 1982, the said incentive was stopped by the Management to which the workmen protested.
5. Admittedly on February 22, 1983, the workmen resorted to strike. It is an admitted case that on that date one Sri Abhijut Chatterjee, the Deputy Plant Manager was assaulted by the concerned workmen within the factory premises in course of their shift duty hours without any provocation and in order to execute a pre-deter-mined decision on their part. Allegedly, Sri Chatterjee had to be hospitalised and a first information report was lodged by Captain A.M. Nautiyal, Security and Fire Officer resulting in initiation of a criminal case against the concerned workmen.
6. On the other hand, the case of the workmen was that at about 2 p.m. on February 20, 1983 they were holding discussions to present their case before the Management when words were sent to them to send 4-5 workmen at the Explosive Office. The representatives of the workmen who went to the office found Mr. Chatterjee, Deputy Plant Manager and Mr. Daljit Singh, Plant Superintendent, there and allegedly seeing the representatives of the workmen, Mr. Chatterjee became furious and started abusing them in filthy language. Allegedly, a counter case was instituted against Sri. Chatterjee and Sri. Daljit Singh. It appears from the demand raised by the workmen with the Management dated February 23, 1983 which has been made a part of the notification dated February 24, 1983 referring the dispute for adjudication to respondent No. 1, an allegation was made that Sri Chatterjee pushed down one Kashi Kumar, the workmen-representative and one of the concerned workmen and further caused injuries to Sri Pashupati Nath Singh (also one of the concerned workmen) by a knife. It was alleged that Pashupati Nath, Kashi Kumar and others were called by the Management for talks.
7. Admittedly, the strike continued for about two months. In view of the aforementioned incidence which took place on February 22, 1983, disciplinary proceedings were initiated as against the concerned workmen for committing misconduct which came within the purview of Clauses 28 (4) and 28 (8) of the Certified Standing Orders of the petitioner-company and they were placed under suspension. Allegedly, the concerned workmen were communicated with the order of suspension, charge-sheet etc. by registered post and the same were also pasted on the Notice Board of the Explosive Office and the time office in accordance with the provisions laid down in the Certified Standing Order calling upon them to submit their show cause. However, no show cause was filed by the workmen whereupon the petitioner initiated disciplinary proceedings against the concerned workmen and as therein also the concerned workmen did not participate, the Enquiry Officer after service of notice upon the concerned workmen and after giving a reasonable opportunity to defend their case came to the conclusion that the concerned workmen were guilty of the acts of misconduct alleged against them. Orders of dismissal were passed against the concerned workmen on March 23, 1983 and April 5, 1983.
8. It appears that at the relevant time two reference cases being Reference Nos. 1 of 1981 and 13 of 1982 were pending and, thus, Management filed applications for approval of the orders of dismissal in the said Reference cases in terms of Section 33 (2) (b) of the Industrial Disputes Act.
9. On the other hand, the case of the concerned workmen is that the Management in hot haste passed the orders of dismissal as against them without serving any charge-sheet upon this and without holding any legal or valid domestic enquiry. It is admitted that at one point of time, the Management and the workmen agreed to the arbitration and availed the good office of the then Labour Minister of the Government of Bihar and the decision of the Labour Minister to the following effect was communicated:
(1) The workmen shall call off the strike immediately.
(2) The management would not victimise any workman for any reason arising out of the strike and would bring normalcy.
(3) The management will pay Rs. 500 as an advance to each workman and the same would be adjusted against their wages.
(4) The Hon’ble Labour Minister would give his decision on April 26, 1983 about the dismissal of those workmen after looking into the relevant papers.
10. The decision of the Labour Minister was accepted by the Management and the Workmen and thereafter the Labour Minister directed the Management to hold fresh enquiry. It is alleged that the Management through the Personnel Manager asked the workmen concerned to contact him relating to providing them an opportunity to participate in the domestic enquiry but later on they changed their mind. It was further stated that although the application for approval in terms of Section 33 (2) (b) of the Industrial Disputes Act is pending, but the workmen had a right to raise an industrial dispute and the consequent Reference made by the State was legal.
11. The State of Bihar being the Appropriate Government issued a notification dated April 15, 1983 whereby and whereunder it referred the following dispute for adjudication of respondent No. 1:
“Whether the dismissal of Sarbshri Pashupati Nath Singh, W.No. 1358; Kuldip Naryana Singh, W. No. 1330; Ramjee Pd., W. No. 2437; Kashi Kumar, W. No. 330 and Madan Mohan Sahu, W. No. 1692 by the management is justified? If not what relief they are entitled to?”
12. Before respondent No. 1 both the parties filed their respective written statements. Respondent No. 1 took up a preliminary issue with regard to the legality or validity of the disciplinary proceeding and by an order dated May 9, 1985 it was held that the disciplinary proceeding held by the management was not fair and proper. Thereafter, the Management and the workmen adduced their respective evidences before respondent No. 1. On the basis of the pleadings of the parties as also the evidence adduced on their behalf, the respondent No. 1 formulated the following questions for his consideration:
(a) Is the reference bad in law?
(b) Was the domestic enquiry fair and proper?
(c) Has there been unfair labour practice or victimization on the part of the management?
(d) Is the action of the management in dismissing these workmen from the services of the company justified?
(e) To what relief the workmen are entitled?
13. The respondent No. 1 upon consideration of the entire evidence on records came to the conclusion that the concerned workmen were guilty of misconduct. But it held that there has been an unfair labour practice and victimization on the part of the Management. He further held that the Reference was not bad in law and in view of the findings aforementioned, held that the workmen were entitled to be reinstated with half backwages.
14. Mr. B.K. Dey learned Counsel appearing on behalf of the petitioners raised two contentions in support of this case.
Learned Counsel firstly submitted that from a perusal of the statements of demands dated February 24, 1983 and April 7, 1983 which were annexed with the order of reference (Annexure-3) it would appear that the demands were raised even prior to the orders of dismissal passed as against the concerned workmen and, thus, the said Reference is bad in law.
15. Learned counsel next contended that in view of the fact that respondent No. 1 has arrived at a finding of fact to the effect that the factory area falls within the prohibited zone and the functions thereof are governed under the provisions of the Explosives Act and the Rules framed thereunder and further having held that the concerned workmen did assault Mr. Abhijit Chatterjee, it had no jurisdiction to grant relief to the concerned workmen.
16. According to the learned Counsel, respondent No. 1 although had power to interfere with the quantum of punishment, in terms of Section 11-A of the said Act, it should have exercised its judicial discretion in the matter and ought to have weighed the circumstances of the case before granting a relief of reinstatement.
Learned Counsel further submitted that there is nothing on record to show that the order of dismissal is shockingly diproportionate to the misconduct committed by the concerned workmen and, thus, the respondent No. 1 ought not to have interefered with the discretion exercised by the Management.
17. It was further submitted that even if it be assumed that the workmen had a justifiable grievance as against the Management, they should not have taken recourse to assault of a senior officer nor should they have gone on a strike which was eventually declared to be illegal.
Learned Counsel in this connection has relied upon a recent decision of the Supreme Court in Bank of India v. T.S. Kelawala reported in 1990-II-LLJ-39 and submitted that in that case it has been stated that even a go-slow tactic adopted by the workmen is a serious misconduct.
18. It was further submitted that respondent. No. 1 did not apply its mind at all with regard to its finding of victimization inasmuch as admittedly the Management did not take recourse to any retaliatory measure as against the concerned workmen despite such misconducts having been committed by them inasmuch as they had been allowed to live in the quarters, paid a sum of Rs. 500 per month as directed by the Labour Minister, accepted the directives of the Labour Minister and implemented the same and further had ordered to find out a peaceful atmosphere and even filed application for dropping of the proceedings against the workmen including the concerned workmen under Section 107 of the Code of Criminal Procedure.
19. Mr. K.D. Prasad learned Counsel appearing for the concerned workmen on the other hand, drew my attention to the various findings of fact arrived at by the respondent No. 1 and submitted that in view of the fact that the Management has been found guilty for resorting to victimization and unfair labour practice the concerned workmen having an unblemished past record and further in view of the fact that it was not a case of assault but merely a case of mishandling, this Court should not exercise its jurisdiction under Articles 226 and 227 of the Constitution of India and interfere with the impugned award. Learned Counsel in this connection has relied upon a decision of the Supreme Court in 1984-II-LLJ-10 (Jitendrs Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd. and Anr.).
20. Learned Counsel further submitted that after the publication of the award, the concerned workmen have been acquitted in the criminal case and a revision application against the said judgment of acquittal has also been dismissed by this Court.
Learned Counsel further submitted that in view of the fact that the concerned workmen have been acquitted in the criminal case, the order of dismissal must be held to be bad in law inasmuch as the concerned workmen could not have been proceeded against for the self-same charges. Learned Counsel in this connection has relied upon (Qamarali Wahid Ali v. State of Madhya Pradesh) reported in 1959-I-LLJ-47 (MP); 1974 (1) SLR 677 (Kashi Nath v. General Manager, N.E. Railway; 1982-II-LLJ-174 (DEL) (Mohan Lal v. Union of India and Ors. and 1976(1) SLR 133 (Kundan Lal v. Delhi Administration and Ors.)
21. Learned Counsel further submitted that the finding of victimization is a finding of fact. Learned Counsel has strongly relied upon a decision in this connection of the Supreme Court in 1964-I-LLJ-9 (The Management of Express News Paper v. P.O., Labour Court and Ors.) and submitted that in view of the decision of the Supreme Court in D.P. Maheshwari v. Delhi Administration and Ors. reported in 1983-II-LLJ-425 (SC) this Court if comes to the conclusion that the order of reinstatement should not have been passed, may not remand the case and may grant suitable monetary compensation to the workmen. Learned Counsel in this connection has also relied upon a decision in Naval Kishore v. Darbshaw B. Curse Jee’s Sons and Ors. reported in 1984-II-LLJ 473 (SC).
22. Mr. B.K. Dey in reply submitted that acquittal in a criminal case by itself is no ground for not holding a disciplinary proceeding as against the concerned workmen. In this connection he strongly relied upon a decision of the Kerala High Court in Spadigan (j) v. State of Kerala reported in 1970-I-LLJ-718
23. In view of the rival contentions of the parties aforementioned, the following questions arise for consideration in this writ application:
A. Whether the reference made by the State of Bihar by reason of the notification dated April 15, 1983 as contained in Annexure-3 to the writ application is bad in law?
B. Whether in view of the subsequent order of acquittal passed by the criminal court, the orders of dismissal passed as against the concerned workmen by the petitioner has become non est in the eyes of law?
C. Whether the respondent No. 1 having found that the concerned workmen are guilty of grave misconduct should have passed an award of reinstatement with half back wages?
24. Re: Question No. A:
As noticed hereinbefore, admittedly, the incident took place on February 22, 1983 and the orders of dismissal which are contained in Annexures 2 to 2/4 were passed on March 23, 1983 against Sri Kuldip Narayan Singh (Annexure-2); Madan Mohan Sahu (Annexure 2/1); Sri Pashupati Nath Singh (Annexure-2/2); and on April 5, 1983 as against Sri Kashi Kumar (Annexure 2/3) and Sri Ramjee Prasad (Annexure 2/4.)
25. The State of Bihar issued the notification in question on April 15, 1983 and in terms of the provisions of the Industrial Disputes (Bihar) Rules annexed herewith, the statement of demands was raised by the respondent Union dated February 24, 1983, February 23, 1983 and April 7, 1983. From the demand dated February 24, 1983 it appears that a resolution was adopted by the respondent-Union in its meeting dated February 24, 1983 that Sri Chatterjee pushed Sri Kashi Kumar who fell down and thereafter assaulted Sri Pashupati Nath Singh with a knife who along with other workmen had gone for talks with the Management. By reason of the said resolution, the Execution Committee of the Union raised a demand with the Management of the petitioner-company inter alia that Sri Daljit Singh and Sri Abhijit Chatterjee be dismissed from service. The Gomla Mazdoor Union also accepted a resolution in a meeting held at 11.45 p.m. on February 22, 1983 making similar allegation and raised the following demands with the Management:
1. Charge-sheet given to the concerned workmen be withdrawn.
2. Said Sri Daljit Singh and A.Chatterjee be dismissed from service.
3. Said Daljit Singh and A. Chatterjee be arrested immediately.
4. Sri Pashupati Nath Singh and Sri Kashi Kumar be released from police custody forthwith.
However, from a perusal of a letter dated April 7, 1983 issued by one Shri Mithilesh Prasad Singh, Secretary of the Indian Explosives Workers Union it appears that a demand was raised to the effect that the orders of dismissal passed against five concerned workmen be reconsidered and they be reinstated with immediate effect. Copy of the said letter was also sent to the Deputy Labour Commissioner with a request for his intervention and doing needful.
26. According to Mr. Dey, learned Counsel appearing on behalf of the petitioner, as the concerned workmen were dismissed from services by orders dated March 23, 1983 and April 5, 1984, the demand raised by the aforementioned unions on February 22, 1983 and on April 27, 1983 was premature and the same could not have been taken into consideration by the State for the purpose of making the reference. Learned counsel, therefore submitted that in the facts and circumstances it must be held that the Reference is bad in law.
The contention of the learned Counsel has no substance. The State of Bihar while issuing the notification in question annexed therewith the list of demands in terms of the provisions of the Industrial Disputes (Bihar) Rules.
27. The very fact that a demand was raised by the Indian Explosives Workers Union with the Management to reconsider the order of dismissal and to reinstate the concerned workmen by a letter dated April 7, 1983 was admittedly raised after the orders of dismissal by the management were passed as against the concerned workmen. The earlier resolutions were taken into consideration by the State of Bihar only for the purpose of considering the factual position as it existed then inasmuch as evidently at that point of time disciplinary proceedings has been going on as against the concerned workmen.
28. It was not in dispute that the orders of dismissal as contained in Annexure-2 series to the writ application were passed consequent upon the said disciplinary proceedings. In this view of the matter if the State has taken into consideration the demand for dropping of the disciplinary proceedings also for reconsideration of the orders of dismissal passed by the Management in exercise of its jurisdiction under Section 10(1) (c) of the Industrial Disputes Act, 1947, in my opinion, it cannot be said that any illegality has been committed thereby.
29. Re.Question No. B:
It is admitted that when the proceedings before respondent No. 1 in the aforementioned reference case were going on, the concerned workmen were facing criminal trial. A supplementary counter-affidavit has been filed on behalf of the workmen wherein inter alia it has been contended that by a judgment dated September 14, 1990 all the concerned workmen have been acquitted of the charge levelled against them in G.R. Case No. 145 of 1983 by Sri Chandra Bhushan Singh, Judicial Magistrate, 1st Class, Bermo at Tenughat. The order sheet dated September 14, 1990 has been marked as Annexure-A to the said supplementary counter-affidavit.
30. It has further been averred that the said judgment of acquittal was challenged by Sri. A. Chatterjee by filing a criminal revision application in this Court being Criminal Revision No. 240/90R and the same has been dismissed by an order dated March 25, 1991. However, no prayer has been made on behalf of the workmen that the said subsequent event be taken into consideration by this Court. In paragraph 8 of the said supplementary counter-affidavit it has merely been averred as follows:
“That the award as contained in Annexure-4 is more in favour of the petitioner than that of the workmen concerned in that although the petitioners were not guilty which was subsequently proved by their acquittal in the criminal case, the Labour Court held them guilty and passed the award directing their reinstatement only with half backwages”.
31. As noticed hereinbefore, Mr. Prasad, learned Counsel appearing on behalf of the concerned workmen, submitted that in view of the subsequent order of acquittal passed by the criminal court, it should be held that the finding of misconduct arrived at by respondent No. 1 was not correct. This writ application was filed in the year, 1987. This order of acquittal of the concerned workmen had been passed by the Criminal Court during the pendency of this writ application. This Court while exercising its jurisdiction for issuing a writ of certiorari, cannot normally take into consideration, document which was not on the records of the Tribunal.
Reference in this connection may be made to Karnani Properties Ltd. v. State of West Bengal and Ors. (AIR) 1990 SC 2047.
32. However, it is settled law that a disciplinary proceedings may be held although for the self-same charges a criminal case might have been at the relevant time. A judgment of a Criminal Court acquitting an accused on the merits of the case, in my opinion, would not bar disciplinary proceedings against him on the basis of the same charges, inasmuch as a Criminal Court requires a high standard of proof for convicting the accused, but such a standard of proof is not required in disciplinary proceedings.
33. In Spadigan v. State of Kerala reported in 1970-I-LLJ-718 it was held that the object of criminal law and its enforcement through criminal proceeding is different from that of disciplinary proceedings. The criminal proceedings is mainly intended to punish the persons who have broken the ‘King’s peace’ whereas the disciplinary proceedings is intended to maintain the purity and efficiency of public service. It is further well known that a person conducting a disciplinary proceedings is not bound by strict rules of evidence to which the Criminal Courts are bound.
34. In Md. Israil v. Choudhury Sia Saran Sinha, reported in 1962-I-LLJ-519 at 525, a Division Bench of this Court held that:
“the scope of the enquiry and the power of an Industrial Tribunal or a Labour Court in a reference under Section 10 of the Industrial Disputes Act in a case which comes before it after the management has taken proper steps for service of a charge-sheet on the workman concerned and held a proper managerial enquiry are different from those in a case which comes before it wherein an order of dismissal had been passed without such steps having been taken by the management for service of a charge-sheet or without holding a managerial enquiry. In the former case, the Tribunal should not interfere unless it finds unfair labour practice or victimization against the employee and in the latter case, the issue about the merits of the impugned order of dismissal is at large before the Tribunal and on the evidence adduced before it, the Tribunal has to decide for itself whether the misconduct alleged is proved, and if yes, what would be proper order to make and in such a case the point about the exercise of managerial functions does not arise at all.”
In that case also the order of dismissal was based upon a judgment of conviction, but the same was set aside in appeal and the delinquent employee was given the benefit of doubt. Despite the said fact, this Court held that-
“As the Labour Court found that the charge against the concerned workman was proved on the evidence adduced before it, it could not be contended that failure of the management to serve a charge-sheet and to hold an enquiry vitiated the order of dismissal.”
35. In J.K. Cotton Spinning and Weaving Co. Ltd. v. Its Workmen reported in 1965-II-LLJ-153, the Supreme Court held:
“When a domestic enquiry was conducted without in any way being influenced by the judgment of the Criminal Court, the findings of fact arrived at in the said domestic enquiry could not be said to be bad in law.’
36. In G. Ravindra Nair v. The Chairman, Cochin Port Trust and Ors. reported in 1979-I-LLJ-94, a learned Single Judge of the Kerala High Court reiterated the aforementioned position of law and observed that whereas in criminal cases, the Courts insist on a high standard of proof, in a departmental proceeding only a preponderance of probability of guilt is sufficient and, thus, it would not be correct to say that the acquittal in a criminal case should always tie the hands of the departmental authorities from proceeding against the delinquent.
37. The position of law that the standard of proof required to prove the charges of guilt in a domestic enquiry is not as high as in Criminal Case is no longer res integra.
In a recent decision of the Supreme Court in Maharashtra State Board of Secondary & H.S. School v. K.S. Gandhi and Ors. reported in 1991(2) SCC page 718 held ‘in a domestic enquiry the standard of proof is not proof beyond reasonable doubt but the preponderance of probabilities tending to draw an inference that the fact must be more probable’. The Supreme Court, however, held that ‘the standard of proof, however, cannot be put in a strait jacket formula and the probative value could be gauged from facts and circumstances in a given case.’
38. As indicated hereinbefore, Mr. Prasad, however, has relied upon various decisions of the other High Courts in support of the proposition that a judgment of a Criminal Court is binding upon the Labour Court.
39. In Qamarali Wahid Ali v. State of Madhya Pradesh reported in 1959-I-LLJ-47 (MP) the fact of the matter was absolutely different. In that case, the petitioner who was a Sub-Inspector of Police was being prosecuted for causing the death on a certain date of a suspect in a house-breaking case by using third degree methods during investigation and was honourably acquitted. The Criminal Court held that the prosecution version was wholly wrong. It was further held by the criminal court that the deceased did not die on that particular date and, thus, it was held that the same could not have been basis for initiation of a disciplinary proceeding. In this case, the workmen had merely been given benefit of doubt and have not been acquitted honourably.
40. In Kashi Nath v. General Manager, N.E. Railway 1974 (1) SLR 677, the Allahabad High Court was concerned with a case where the order of dismissal was passed on the basis of a judgment of conviction. Such is not the position here.
41. In Shri Kundan Lal v. Delhi Administration, Delhi and Ors. reported in 1976 (1) SLR 133, the departmental action was taken against the delinquent employee two years after the proceeding was honourably acquitted and the State’s appeal against the acquittal was also dismissed.
42. In Mohan Lal v. Union of India and Ors. reported in 1982-II-LLJ-174 (Del), the Delhi High Court was considering the scope of Rule 54 (3) of the Fundamental Rules in terms whereof the period spent on suspension should be treated as period spent on duty for all purposes if the order of dismissal, removal or compulsory retirement is set aside. In that context it was held that when a person is acquitted on benefit of doubt, it would come within the purview of Rule 54(3) of the Fundamental Rules. The Learned Judge, however, held: (pp. 175-176):
“If it was a mere case of a doubt according to the strict requirement of rules in a criminal trial the petitioner could have been proceeded against departmentally. Technical rules of evidence are not applicable to departmental proceedings. The petitioner was charged under Section 294 of the Indian Penal Code. Indecent behavior with a woman is certainly a conduct unbecoming of a Government servant. But it appears that the respondents were convinced that there was no sufficient evidence to hold that the conduct of the petitioner was unbecoming of a Government servant. By inference one can reach this conclusion as no departmental proceeding was held against the petitioner.”
The said judgment, therefore, is an authority for the proposition that even if a person is acquitted in a criminal case, a departmental proceeding may be initiated against him and therein he may be found guilty.
43. From the order of acquittal dated June 14, 1990 passed by Sr. C.B. Sinha in I.E.L.P.S. Case No. 14/83 (G.R. No. 145/83) it appears that it was held therein that the case of the prosecution is full of doubts and this benefit of doubt should be given to the accused persons. It is, therefore, not a case where it has been held by the Criminal Court that the prosecution of the concerned workmen was mala fide or false and frivolous.
44. Further it may be mentioned that whereas the incident took place on February 22, 1983, the judgment by the Criminal Court was passed on September 14, 1990, that is, after a long lapse of seven years; whereas before the respondent No. 1 all the witnesses including the doctors had been examined in the year 1986-87 and on the basis of the materials brought on records it was held by the respondent No. 1 that the Management has been able to prove the charges of misconduct as against the concerned workmen.
45. Further, as would be indicated hereinafter, the workmen were charged on different counts and were found guilty on both the charges; whereas in the criminal case, the concerned workmen were facing charge of assault on Mr. Chatterjee only. In this view of the matter, it must be held that the order of acquittal passed by the Criminal Court will have no bearing with the finding of misconduct, arrived at by the respondent No. 1.
46. In this connection, it may further be mentioned that the concerned workmen had admitted to have filed a writ application in this Court questioning that part of the award whereby and whereunder the respondent No. 1 has awarded half backwages to the concerned workmen and not the full backwages. A Division Bench of this Court dismissed the said writ application summarily. It, therefore, does not lie in the mouth of the concerned workmen now to contend that as the concerned workmen were acquitted by the Criminal Court, they were entitled to be reinstated with full backwages.
47. Re-question No. C:
As noticed hereinbefore, the concerned workmen were charged for commission of misconduct under Clauses 28 (4) and 28 (8) of the Certified Standing Orders. The article of charge brought as against the concerned workmen is as follows:
“It is reported that when you came for back shift duty (2.00 p.m. to 10.00 p.m.) today you did not go to your place of work. Further at about 2.40 p.m. you were waiting outside the Explosive Area office and when Sri A. Chatterjee, Deputy Plant Manager, Blasting Department came there, you and some others, without provocation, physically assaulted Shri A. Chatterjee resulting in injuries to him.
Respondent No. 1 took into consideration materials brought on record by the parties to the reference and inter alia held:
(1) In view of the evidence of Dr. P.L. Kanth, a Medical Officer, in charge of Gomia State Dispensary, as also the evidence of Dr.S.K. Bhattacharya, Senior Medical Officer of Ardeer Hospital (M. W. 1), the Management has been able to prove that Sri Chatterjee sustained the following injuries as mentioned by them in their injury reports:
(i) One long abrasion size 6″ x 2″ upper part and 6 1/4″ lower part on front of right shoulder: simple injury caused by hard blunt substance;
(ii) Bruise 1/2″ x 1/2″ at the back of right ear simple caused by hard blunt substance;
(iii) Lacerated injury 1/2″ x 1/2″ on medial aspects of right elbow-simple caused by hard blunt substance.
(iv) Multiple red bruise left shoulder and back-simple caused by hard blunt substance, the age of the injury at the time he examined was less than six hours.”
48. It was further held that the defence set up by the workmen that the incident took place in the chamber of Shri Chatterjee where the workmen were assaulted by Sri Chattrajee himself was not correct as W.W. 1 the Investigating Officer did not find any proof of violence in the chamber of Sri Chatterjee. According to him, the place of occurrence was outside the blasting area office.
Respondent No. 1 held:
“Considering above facts and circumstances and evidence on records I find and hold that the concerned workmen had indulged themselves in assaulting Sri Chatterjee causing injury on his person in the manner as stated by the witnesses of the management.”
Proceeding further, upon considering as to whether the concerned workmen were guilty of misconduct as envisaged under Sub-clauses (4) and (8) of Standing Order No. 28 of the Certified Standing Orders of the petitioner-company, it held:
“In the present case the assault on Sri Chatterjee in the factory premises of the Blasting Deptt. endangered the life of Sri. A. Chatterjee and also the life of other employees in the sense that any untoward incident might have happened because of riotous behaviour resorted to by the workmen.
I find and hold that the acts of assault done by these five workmen are fully covered under misconduct as prescribed under Clauses 28(4) and 28(8) of the Certified Standing Orders, of the company. The management have been able to prove the misconduct before this court for which these five workmen have been dismissed from the services of the company.”
49. The respondent No. 1, thereafter, took into consideration as to whether there has been unfair labour practice, victimization, on the part of the Management in view of the extreme punishment of dismissal.
While considering the said question it was held:
“(a) It cannot be denied that the cause of Work Reward was a common cause of the workers, to press for Work Reward was a legitimate right of the workers which demand the management had been ignoring or evading to redress. Therefore, I conclude that root cause which led to the said incident of man-handling was the common, bona fide and legitimate cause of the workers.”
In view of the order dated May 9, 1985 where the issue of the fairness or otherwise of the domestic enquiry was considered, the respondent No. 1 held:-
b) The enquiry was not fair and the management had resorted to take action against the concerned workmen in a hot haste manner;
c) After the said incident further development in respect to relations between the management and the workers in general had occurred, the relationship was strained and a proceeding under Section 107, Cr. P.C. was started at the instance of the management, it appears that during the existence of strained relationship the management have dismissed these five workmen from their services.
d) A case and a counter-case were pending against the concerned workmen and Sri Daljit Singh, during the pendency of which those workmen had been dismissed.
e) The management have taken action only against those five workmen although a general strike was resorted to by all workers of the factory.
50. On the aforementioned reasonings, respondent No. 1 held:
“In the above facts and circumstances, I find and hold that these are sufficient materials on record to find and hold that the action of the management in dismissing these five workers from the services of the company is not free from victimization, mala fide unfair labour practice and discrimination. It is a settled law that in case of proved misconduct the order of dismissal could be interfered only if the materials on the record prove that there had been mala fide victimization, unfair labour practice and in the present case, as stated above, there are materials on record to hold as such.”
It was further held that it was a good gesture on the part of the management to allow the workmen to stay in the company’s quarters even after their dismissal, the proceeding under Section 107, Cr. P.C. had also been dropped at their instance.
Respondent No. 1, however, observed:
“these acts of gesture do not at all cover their acts of mala fide vicitimization, unfair labour practice and discrimination meted out to these workmen.”
51. Respondent No. 1 thereafter considered the past records of the concerned workmen and came to the conclusion that in view of their past records, the order of dismissal was not justified.
52. The question which, therefore, arises for consideration is as to whether the respondent No. 1 committed any illegality in holding that the order of dismissal was not justified, although it held that the concerned workmen were guilty of misconduct.
The findings of fact arrived at by respondent No. 1 that on the basis of the evidences adduced by the Management, the misconduct as against the concerned workmen have been proved, arc not under challenge. As indicated hereinbefore, Mr. K.D. Prasad, learned counsel appearing for the respondent Union, except contending that the charges of misconduct must be held to have failed in view of the subsequent event, namely, the acquittal of the concerned workmen in a Criminal Court, has not raised any contention that the afore mentioned findings of fact arrived at by respondent No. 1 are otherwise vitiated in law.
53. Respondent No. 1, as noticed hereinbefore, proceeded to consider the question of unfair labour practice, victimization and discrimination on the part of the Management, on the basis of the conduct of the parties subsequent to February 22, 1983 on which date the misconduct was committed by the concerned workmen. The concerned workmen might have a just cause to be agitated because of some action on the part of the Management. However, that does not mean that the concerned workmen would take law in their own hands and go to the extent of assaulting a high ranking officer.
54. It is now well-known that a plea of vicitimization has to be specifically pleaded and proved. The onus to prove victimization is upon a person who alleges it. The plea of victimization raised by the concerned workmen in their written statement was absolutely vague and general in nature and no specific instance of victimization was pleaded. Even before respondent No. 1, the witnesses examined on behalf of the workmen did not spell out instances showing victimization of the concerned workmen. It is now well- known that mere allegations of victimization is not enough. It is also a trite law that when it is found that the employee is guilty of misconduct, the question of victimization becomes irrelevant.
55. The respondent No. 1, further in my opinion ought not to have taken into consideration the unfairness or otherwise of the domestic enquiry as one of the grounds for holding that the Management has resorted to unfair labour practice or victimization. The said question was relevant for the purpose of considering a preliminary issue retailing to fairness or otherwise of the domestic enquiry. However, it may be mentioned that only when the Management intentionally does not hold any domestic enquiry, the same may be relevant for the purpose of finding out as to whether the action on the part of the management was mala fide or not.
Respondent No. 1 further, in my opinion, acted illegally and without jurisdiction in taking into consideration the filing of the criminal case and the counter case as some of the factors in coming to the conclusion that there has been a victimization. So far as the counter case filed on behalf of the workmen is concerned, it appears from the record that this Court had quashed the said proceeding and the said order has been upheld by the Supreme Court also. As indicated hereinabove even the Criminal Case as against the concerned workmen ended in an acquittal.
56. The decision of the Supreme Court cited by Mr. Prasad in the Management of Express Newspapers, (supra) is of no assistance inasmuch as therein the Supreme Court held: (1964-I-LLJ-9 at 11):
“It appears to us clear that when the Labour Court came to the conclusion on a consideration of the evidence that the Management’s action was not bona fide but amounted to victimization of the employee it would not have been open to High Court to disturb that finding except on the ground of an error apparent on the face of the record or on the ground that there was no evidence at all to support it.”
57. From the discussions made hereinbefore, it is evident that respondent No. 1 while arriving at a finding of fact on the alleged acts of victimization on the part of the Management, committed an error apparent on the face of the record and further considered matters which were wholly irrelevant and extraneous and failed to take into consideration the relevant facts. It is now well known that failure to take into consideration the relevant facts and passing an order on the basis of irrelevant facts or extraneous consideration vitiates the order as the same amounts to error apparent on the face of the record.
58.What is an error apparent on the face of the record has been stated in De Smith’s Judicial Review of Administrative Action 4th Edition at page 136 which inter alia, reads as follows: –
“The concept of error of law includes the giving of reasons that are bad in law or (if there is a duty to give reasons) inconsistent, unintelligible or, it would seem, substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence.”
It is also well-known that where an authority does not ask itself the right question and take reasonable steps to acquaint itself with the relevant information to enable it to answer it correctly, the same amounts to a misdirection in law.
Reference in this connection may be made to Secretary of State v. Tameside, reported in 1976 Vol. III All England Law Reporter page 665 at 696.
59. So far as the finding of discrimination as against the concerned workmen is concerned, the same has also no basis. Respondent No. 1 himself found that the concerned workmen are guilty of assaulting Sri A. Chatterjee within the factory premises. He also did not believe the plea of the workmen with regard to the actual place of occurrence. The other workmen present there might have been present, but they did not assault Sri Chatterjee.
60. It is true that all the workmen had gone on strike even after the said incident, but that does not mean that only because the Management had taken action only against the five concerned workmen and did not take any action as against the other workmen, the concerned workmen have been discriminated against by the Management.
61. There cannot be any doubt that normally the Management should not make any discrimination, but the same does not mean that a different treatment cannot be meted out to those who do not stand on a similar footing with others. Equality of law and equal protection of law mean the same treatment should be meted out to the persons similarly situated. Only when different treatments are meted out to the persons similarly situated, the question of discrimination arises.
62. In the instant case, the respondent No. 1 itself has found that only the five concerned workmen had assaulted Sri. Chatterjee. There is no such allegation as against the other concerned workmen. Only because they subsequently resorted to a general strike does not mean that the concerned workmen who were proceeded against in a departmental proceeding with specific charges had been discriminated against.
63. On the other hand, it has been admitted by Mr. K.D. Prasad that the proceedings under Section 107 of the Code of Criminal Procedure was withdrawn at the instance of the Management. Respondent No. 1 has further recorded that the Management had allowed the concerned workmen to stay in their quarters even after the orders of dismissal and paid a sum of Rs. 500 to each of them. It has further been accepted that the Management had implemented the interim directions given by the then Minister for Labour. The Management had also started a fresh enquiry about the direction of the Hon’ble Minister and whether it was implemented by the time the Order of Reference itself was made.
64. In Sunil Kumar Roy v. Union of India and Ors., reported in 1977 BBCJ 612, a Division Bench of this Court held, upon consideration of Syndicate Bank v. Its Workmen, reported in 1966-I-LLJ-440 (SC), Bareilly Electricity Supply Co. Ltd. v. Sirajuddin reported in 1960-I-LLJ-556 (SC), that a finding of mala fide arrived at by the Industrial Tribunal should be upheld if there was sufficient and proper evidence to support such a finding and the Industrial Tribunal should not arrive at such a finding capriciously or on flimsy ground. This Court observed that in the aforementioned case of Syndicate Bank (supra) the Supreme Court set aside the finding of mala fide recorded by the Tribunal which was followed in Bareilly Electricity (supra).
65. In this case also, as discussed hereinbefore, in my opinion the finding of mala fide, unfair labour practice or victimisation or discrimination arrived at by respondent no. 1 are based on no material whatsoever.
66. In Tata Oil Mills v. Its Workmen 1964-II-LLJ-113 (SC) the Supreme Court held that only because the domestic enquiry was not stayed pending the criminal proceeding against the workmen concerned, the same does not constitute mala fide on the part of the Management.
67. There cannot be any doubt that a past record is a relevant factor for the purpose of considering as to whether the extreme punishment of dismissal should be awarded or not. However, it is evident that the same is although a relevant consideration, an order of dismissal cannot be set aside only because the past record of the concerned workman was good. For coming to such a conclusion, various factors including the gravity of misconduct alleged and other factors should be taken into consideration.
68. In Bank of India v. T.S. Kelawala and Ors. reported in 1990-II-LLJ-39, the Supreme Court held as follows (p.53):
“There cannot be two opinions that go-slow is a serious misconduct being a covert and a more damaging breach of the contract of employment. It is an insidious method of undermining discipline and at the same time a crude device to defy the norms of work. It has been roundly condemned as an industrial action and has not been recognized as a legitimate weapon of the workmen to redress their grievances. In fact the Model Standing Orders as well as the Certified Standing Orders of the most of the industrial establishments define it as a misconduct and provide for a disciplinary action for it. Hence, once it is proved, those guilty of it have to face the consequences which may include deduction of wages and even dismissal from service.”
69. In the instant case the respondent No. 1 has held that the concerned workmen are guilty of riotous or disorderly behaviour during working hours. The blasting zone of the factory of the petitioner is a protected place. Rule 90 of the Explosives Rules provides that the factory area should not be visited by unauthorised persons.
70. Evidently, even after the said incident, the concerned workmen along with various other persons were proceeded against under Section 107 of the Code of Criminal Procedure and two of them, in view of their conduct, were directed to furnish interim bonds by the Magistrate in terms of Section 116 (3) of the Code of Criminal Procedure.
71. In Tata Oil Mills Co. ‘s case, (supra) the Supreme Court was considering a case where a workman assaulted another workman outside the factory area and in such a situation also it was held that the concerned workman has committed misconduct as the said act of assault was resorted to as the victim workman was supporting the plea of the management for more production.
72. In view of the findings of the respondent No. 1 itself, it must be held that as the concerned
workman were guilty of grave misconduct it was not a case where they should have been reinstated in service.
73. However, it is evident that the order of dismissal was passed upon holding the enquiry which was not fair or proper. The Management must be held to have realized this position when it acceded to the direction of the then Labour Minister of the State of Bihar that fresh enquiry should be held. The Management, thereafter, proved the charges of misconduct by adducing evidence before the respondent No. 1
In this view of the matter, in my opinion, the interest of justice will be sub-served if the concerned workmen are paid their salary till the date of passing of the award.
74. It appears that the Management has already paid a sum of Rs. 56,900/- to each of the concerned workmen totaling a sum of Rs. 2,84,500 pursuant to the interim orders passed by this Court till April, 1991. The concerned workmen are not required to refund the said amount to the Management.
75. In view of my findings aforementioned, it is not necessary to consider the scope of judicial review of this Court vis-a-vis Section 11-A of the Industrial Disputes Act relating to the powers of the Labour Court in the matter of quantum of punishment.
76. O.P. Bhandari v. Indian Toursim Development Corporation Ltd. and Ors. reported in 1986-II-LLJ-509 (SC) the Supreme Court held that 3.33 years of salary is an adequate compensation in a case where the Court is not inclinded to pass an order of reinstatement, although, the same was illegal. In this case the order of dismissal has been found to be justified. The concerned workmen were dismissed from service in the last week of March, 1983 and first week of April, 1983. The award has been passed on October 6, 1986. In view of the fact that I have directed payment of salary to the concerned workmen till the date of passing of the award, the same would be more then 3.33 years of salary.
77. It may be mentioned that at one point of time I was thinking to remand the matter back, but in view of the suggestion given by Mr. Prasad himself that by further remand, the case will unnecessarily linger and the workmen shall be harassed, I have passed this judgment taking into consideration the facts and circumstances of this case and in the interest of justice.
78. In the result, the impugned award, dated October 6, 1986 (Annexure-4) is modified to the extent mentioned hereinbefore. This application is thus allowed in part and to the aforementioned extent. However, in the facts and circumstances of this case, the parties shall pay and bear their own costs.