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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 3618/2008
Shri Santosh Kumar s/o Babulal Gupta,
aged about 45 years,
Occupation - Unemployed,
R/o C/o Shri Babulal Gupta ( Nema),
Near Utpadan Van Mandal Bara Parattar,
Mohala, Sheoni, Tahsil and District Sheoni,
Madhya Pradesh. - PETITIONER
VERSUS
1. The Sub-Area Manager,
M/s Western Coalfields Ltd.,
Rajur Sub-Area, PO Rajur Wani,
District Yeotmal, Maharashtra,
2. Presiding Officer,
Central Government Industrial Court-
cum-Labour Court, Nagpur. - RESPONDENTS
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Mr. D.N. Kukday, Advocate for petitioner.
Mr. Ashish Mehadia, Advocate for respondent No.1.
Mr. Shyam Ahirkar, A.G.P. for respondent No.2.
----------------------------------------------------------------------------------------------------
CORAM:- A.B. CHAUDHARI, J.
Date of reserving the judgment :- 31.08.2009
Date of pronouncing the judgment :- 09.09.2009
JUDGMENT
1. This Writ Petition is directed against the Judgment and
award dated 21-05-2008 passed by the Presiding Officer, Central
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Government Industrial Court-Cum-Labour Court, Nagpur in reference
No. CGIT/NGP/72/2001 at the instance of dismissed employee –
Santosh Kumar Gupta.
On 8th April, 2009 this Court directed listing of this Writ
Petition for final hearing on 24-08-2009. On 28-08-2009 this Writ
Petition appeared before me for final disposal in order matters, when
learned Counsel for petitioner Mr. D.N. Kukday, appointed by Legal Aid
Committee mentioned that the petitioner who remained present on
certain dates previously indulged in disturbing one and all including
the Court and that is why earlier two Counsels who were appearing for
him through legal aid had left the matter and now it is he who is
appearing for the petitioner. He submitted that petitioner was
dismissed from service in the year 1984 and since then he has been
litigating. He therefore urged me to take up his case for final disposal.
During the course of discussion, petitioner made his appearance
before me and started showing some papers to me with a raised loud
voice but then I asked him to instruct his Counsel Mr. D.N. Kukday
rather than addressing the Court. However, he persisted in doing the
same and therefore he was taken out of the Court room by Security
Guards. In view of this peculiar situation, I asked the consent of
Counsel for both parties for deciding the Writ Petition finally in order
matters so that the lis would end at least before the Single Judge of
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this Court. Mr. Ashish Mehadia, learned Counsel appearing for
respondents agreed with the proposal and accordingly Mr. D.N. Kukday
commenced his argument. After arguments were heard for sometime;
with the assistance of Mr. Ashish Mehadia, I went through the
documents on the record of the Labour Court and at that stage Mr.
Ashish Mehadia sought some time to take instructions from his client.
Since the respondents’ office is at Wani and in order to give full
opportunity to respondents reluctantly, I adjourned the proceedings to
31-08-2009 with the consent of Counsel for the rival parties.
FACTS
2. It is not in dispute that the petitioner was appointed by order
No. WCL:SAI:PER:3981 dated 21/22 November, 1982 (Exh.5) by
respondents as General Majdoor Category-I on purely temporary basis
for a period of one year and was asked to report for duty to the Project
Officer, Rajur Colliery. A charge dated 7-2-1984 (Exh.6) was issued to
him by the Manager in which it was stated that on 6th February, 1984
he entered the office of Project Officer at about 11-00 a.m. and made a
demand for advance of Rs.2,000/-(Rs. Two thousand) and upon failure
to pay he said that he would publish some objectionable matters
against the management in some newspaper or would handover the
same to Police Department. When the Project Officer refused to give
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him advance amount, he lost his temper and threatened him with dire
consequences. He was then removed from office by Security Guard on
duty and other witnesses. It was stated that as per Model Standing
Order No. 16 (i) (r) & (g), he committed misconduct and he was asked
to reply. It was stated that pending enquiry, he was suspended
immediately and that he would be paid subsistence allowance as per
rules. It appears that on 25-2-1984 Shri P.G. Jahagirdar who was
appointed as enquiry Officer, informed the petitioner that a domestic
enquiry will be held on 28-02-1984 at 4.00 p.m. and he should appear.
It appears that on 28-2-1984 due to some inauguration function, the
enquiry was not held and therefore, by letter dated 3rd March, 1984 he
was informed that the enquiry would be held on 5-3-1984 at 5.00 p.m.
There is nothing to show that this notice was actually served on him. It
appears that on 5-3-1984 petitioner did not appear and had already
left head-quarter after obtaining permission for 8 to 10 days, but then
he did not turn up. On 10th May, 1984 he was given Registered A.D.
notice at his permanent address asking him to appear on 30 th May,
1984 at 4.00 p.m. It is not clear as to whether enquiry was held on
30th May, 1984 or at any point of time thereafter. Hence Labour Court
has also categorically held that despite several opportunities;
respondents-management failed to file any papers or evidence that
any such domestic enquiry was held on 30-5-1984 or at any point
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thereafter. It appears that thereafter a dismissal order was made
dismissing the petitioner from service with effect from 11-7-1984. The
petitioner claims that he was never made aware about the said order
of dismissal from service and in absence of knowledge to him, he went
on making representation after representations and having found no
response, he made representations even to the Legal Aid Committee
at Sheoni (Madhya Pradesh). He repeatedly made a grievance that he
did not know about the order of dismissal from service. With these
state of affairs, somehow with the advice of somebody, perhaps Legal
Aid Committee, he approached the Conciliation Officer on 21-7-1997.
It appears that appropriate Government declined to make reference on
the grievance made by him vide memorandum dated 31-8-1998
recording following reasons.
“The workman was suspended by the
management on 7-2-1984 whereas he
approached the ALC (C), Chandrapur only in the
month of July 1997 after a lapse of 12 years
without any explanation for raising the dispute
belatedly. As it is a belated case. There is no
merit for any reference to the tribunal for
adjudication.”
3. It then appears that a letter dated 20/21-9-2000 was issued
by General Manager of the respondents to Shri R.C. Manocha, Section
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Officer of Ministry of Coal, New Delhi in which the facts about the
petitioner were disclosed and it was stated that by letter No. 1791
dated 11-7-1984 petitioner was dismissed from service. It then
appears that thereafter the appropriate Government on 1-10-2001
made a reference to the Labour Court in the matter of termination of
services of the petitioner and therefore, the proceedings before the
Labour Court were initiated. The petitioner filed his statement of claim
dt. 6-1-2002 through his Advocate Shri R.E. Moharir and it appears that
copy thereof was received by respondents on 15-12-2006 and for this
delay no reasons are forthcoming. It appears that on 30 th July, 2002
Labour Court proceeded ex-parte against respondents for want of
written statement and it appears that on 21-12-2006 application for
permission to file written statement along with written statement was
made by respondents before the Labour Court and though opposed the
same was allowed and consequently written statement was taken on
record. It appears that thereafter the proceedings continued and by
application dated 9-3-2007 respondents sought time of one month to
file original departmental enquiry papers. The Labour Court granted
that application as last chance subject to payment of cost of Rs.200/-
(Rs. Two hundred) vide order dated 9-3-2007. It appears that on
23-4-2007 petitioner filed about 14 documents with the permission of
the Court vide List dated 23-4-2007. It appears that the case was then
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fixed for submissions on validity of the departmental enquiry. After
hearing Counsel for parties, the Labour Court made an order on
27-7-2007 recording a finding that the management after taking time
informed the Court its inability to file documents of enquiry and
therefore, it held that enquiry was vitiated and consequently was not
fair and proper and the same was set aside. The Court accepted the
alternate prayer to allow the management to prove charges before the
Court. It appears that thereafter respondents filed affidavit-evidence of
Shri Kishor Barve, Project Officer; Shri Chandu Khond, Clerk in his
office; Shri Pratap Kashyap, Clerk working in Despatch Section of his
office on 21-9-2007. There is a remark perhaps by respondents on
these affidavits dated 20-9-2007 of Shri Chandu Khond and Shri Pratap
Kashyap that those affidavits were not pressed vide remark dated
16-11-2007 and it appears that in place of those affidavits fresh
affidavits of these two persons dated 15-11-2007 were filed. The
difference in these affidavits is that in the earlier affidavits of Shri
Chandu Khond and Shri Pratap Kashyap there are no abuses or filthy
language (abuses) as stated in affidavit-evidence of Shri Kishor Barve.
But they have been mentioned in these subsequent affidavits dt.
15-11-2007. It then appears that these witnesses were cross-
examined on 7-12-2007 and 14-12-2007. It appears that petitioner
filed his affidavit-evidence dated 19-10-2006 and dated 3-1-2008. The
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petitioner was cross-examined on 14-3-2008. It appears that on
14-3-2008 during the course of his evidence petitioner’s Counsel filed
application for leading secondary evidence. But it does not appear
that any order has been passed on that application. It appears that
said application was on affidavit and was not seriously objected.
Thereafter the parties filed written notes of argument with citations
and finally the impugned award came to be made.
SUBMISSIONS ON BEHALF OF PETIIONER
4. Mr. D.N. Kukday the learned Counsel for plaintiff made the
following submissions.
i) The Labour Court has recorded a finding that enquiry held
was not fair and proper. But in the absence of any evidence to show
that enquiry was really held, it ought to have held that no enquiry was
at all held.
ii) Having held that respondent management was entitled to
prove misconduct before Labour Court, it ought to have ordered
reinstatement forthwith leaving the questions of back wages in the
light of various decisions.
iii) Labour Court ignored the evidence about making of
representations by petitioner on regular basis which documents were
exhibited subject to objection which was not decided. Petitioner was
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pursuing his cause and there was no delay on his part. In fact
petitioner filed statement of claim on 6-1-2002 and respondent filed
written statement on 21-12-2006 when it was already proceeded ex-
parte. Respondent thus delayed the matter.
iv) About alleged misconduct of 6-2-1984 witnesses deposed in
the year 2007 for the first time. Their evidence is liable to be rejected
being delayed. Even otherwise this is a case of ‘no evidence’.
v) Alternatively, in the absence of any bad past record, merely
for threatening, penalty of dismissal from service could not be
awarded. Now petitioner has suffered enough and that itself should be
treated as punishment and he be reinstated with continuity of service
and full back wages.
SUBMISSIONS ON BEHALF OF RESPONDENTS
5. Per-contra Mr. Ashish Mehadia, the learned Counsel for
respondents made the following submissions.
i) This Court in its extraordinary writ jurisdiction should not
interfere with the findings of facts recorded by the Labour Court on
evidence.
ii) First reference made by petitioner having been rejected by
the appropriate Government, making second reference was illegal and
hence Labour Court rightly rejected it on that ground.
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iii) Admittedly the petitioner approached Conciliation Officer for
the first time in the year 1997 i.e. after 12-13 years and the
explanation for delay through alleged representations made by
petitioner has been found to be false by Labour Court for want of
acknowledgments. For delay, reference was liable to be rejected. He
relied on the following decisions.
1) 2005(5) SCC 91, Haryana State Coop. Land Development
Bank v. Neelam.
2) 2006(6) SCC 221, Reserve Bank of India v. Gopinath
Sharma and another.
3) 2004(2) LLJ 460 (Karnataka High Court), Chandrappagol
A.G. and Assistant Executive Engineer, Ghataprabha Right Bank Canal
Construction, Sub-division 1, Belgaum District.
4) AIR 2000 SC 839, The Nedungadi Bank Ltd. v. K.P.
Madhavankutty and others.
5) 1998 LAB.IC 1702 (Allahabad High Court), U.P. State
Electricity Board and another, Petitioners v. Presiding Officer, Labour
Court, I, U.P., Kanpur and others.
iv) In cross-examination petitioner admitted to have received
termination order on 11-7-1984 itself and thus his plea of knowledge in
the year 1989 is false.
v) He was a temporary employee and no enquiry even was
necessary.
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vi) Evidence of witnesses of respondent has not been shaken
but evidence of petitioner is shaken. Misconduct has been proved
before Labour Court, which is of serious nature warranting punishment
of dismissal only.
vii) Alternatively, considering ‘no work no pay’ doctrine, no
interference could be made on back wages. He relied on 2006(6) SCC
221, Reserve Bank of India v. Gopinath Sharma and another. He
prayed for dismissal of petition with costs.
CONSIDERATION
6. I have carefully gone through the entire record and
proceedings of the trial Court. I have heard learned Counsels for the
rival parties at length. Perusal of the impugned judgment shows that
in paragraph 6 the trial Court has dismissed the reference only on the
ground that earlier reference having been refused by the appropriate
Government, second reference could not have been made. He
however also decided the case on merits. Dealing with this first aspect
I find that the Hon’ble Supreme Court in AIR 2000 SC 915, Secretary,
Indian Tea Association v. Ajit Kumar Barat and others has held that
order made by appropriate Government making reference is an
administrative Order and it is a well settled legal position that
administrative action or the administrative orders can be made by the
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appropriate Government from time to time. There is no bar anywhere
that if at one point of time reference is rejected, the same cannot be
again made by an administrative authority. Therefore, the finding
given by the tribunal in paragraph 6 is illegal. That apart this second
order of reference dated 1-10-2001 made by the appropriate
Government was never put to challenge before the appropriate Court
at any point of time and it was therefore, not within the powers of the
Labour Court to hold that the second order making reference was
wrong.
7. The trial Court had made an order on validity of enquiry
(VDE) on 27-7-2007 relevant portion of which reads thus ;-
“Since the papers are insufficient to conclude
whether the enquiry was proper and in
accordance with the principles of natural justice,
management was directed to file original enquiry
papers as the management after taking timeinformed its inability to file the documents of
enquiry. Secondly there is nothing on record
except copy of chargesheet to consider the
fairness of enquiry. Under the abovecircumstances, there is no other way than to
vitiate the enquiry with findings that it was in
accordance with the principles of natural justice
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13hold that enquiry was unfair and set it aside.”
“The management’s Counsel after pointing
paragraph 16 submitted that he had made an
alternate prayer to allow it to prove the charges
before the Court in case the enquiry has been
vitiated. It is well settled principle thatmanagement is entitled to prove charges even
before the Labour Court in case the enquiry is
found as unfair and improper. Accordingly the
management will have to be permitted to provethe charges before the Court. Hence liberty of
proving the charges before this Court is given to
the management.”
Perusal of the record shows that no evidence was at all
adduced to show that enquiry papers and termination order were
destroyed under any extant rules or that they were not traceable
despite attempts to search them and what attempts were made to
search. Thus it is not in dispute that respondent-management did not
also produce any evidence as to whether on or after 30-5-1984 any
enquiry was conducted by the enquiry Officer. The respondent-
management did not examine Shri P.A. Jahagirdar or any witness
before the Labour Court to support their stand that enquiry was held
after service of chargesheet as two adjournments were granted at the
instance of respondent-management. Though three witnesses Shri
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Kishor Barve, Chandu Khond and Pratap Kashyap were examined
before the tribunal; none of them have even whispered before the
tribunal that any enquiry was held in which they deposed as witnesses
nor any one of them or any witness or Mr. P.A. Jahagirdar was
examined to prove that witnesses were examined in the so called
departmental enquiry allegedly held on or after 30th May, 1984.
Merely issuing chargesheet and issuing two notices of dates on which
no proceedings at all took place does not lead to any inference that
enquiry was at all held. I hold that trial Court ought to have held that
‘no enquiry’ was held and petitioner was thus dismissed ‘without
enquiry’. This finding may not have any impact on the power of
Labour Court to allow proof of misconduct before it, though impact on
the question of award of back wages may be applied. Hence, I hold
that there was no enquiry before dismissal of petitioner.
8. In the statement of claim filed by petitioner in para 2,
specific stand was taken by him that the dismissal order was never
served on him. Early representations made by him also show that he
did not have the knowledge about his termination till 1989. Perusal of
written statement and particularly parawise reply to para 2 shows that
there is assertion about dismissal with effect from 11-7-1984 but no
specific denial is made about non-service of dismissal order on him but
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only surprise is expressed as to how he came to know about it in 1989.
There is no assertion in the pleading even or oral evidence that the
same was served on him either on 11-7-1984 or at any time thereafter
and by whom and at which place as he must be at Sheoni (Madhya
Pradesh) on 11-7-1984 as nothing is shown that he was specifically
called on 11-7-1984 at Rajur where dismissal order is said to have
been passed on 11-7-1984. There is no evidence showing that he
continued to reside at Rajur without receiving any subsistence
allowance from 1st May, 1984; and who served it on him. The alleged
admission in the evidence in cross-examination of petitioner shown to
me by Mr. Ashish Mehadia, Advocate i.e. “I was served with
termination order, on 11-7-1984. The order was taken back through
security guard” will have to be carefully scanned in the light of above
overwhelming circumstances. In my opinion, the so-called admission is
nothing but ‘stray’ and having been obtained after he entered the
witness-box after 22 years with completely ‘shaken’ mentally and
caught in legal tangle with no means. I therefore refuse to treat this
as admission and also hold that in the absence of pleading in written
statement, even this question could have not been allowed to be
asked. No acknowledgment of service of dismissal order on the
petitioner has at all been produced by respondent anywhere nor any
oral evidence of service nor any reason for not producing the same is
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placed. It has to be therefore held that petitioner was not served with
the order of termination of his service. The Hon’ble Supreme Court in
the case of State of Punjab Vs. Amar Singh Harika, AIR 1966 SC 1313
held in Para 11 as under;
“The first question which has been raised before
us by Mr. Bishan Narain is that though the
respondent came to know about the order of his
dismissal for the first time on the 28th May 1951,the said order must be deemed to have taken
effect as from the 3rd June 1949 when it wasactually passed. The High Court has rejected
this contention, but Mr. Bishan Narain contendsthat the view taken by the High Court is
erroneous in law. We are not impressed by Mr.
Bishan Narain’s argument. It is plain that themere passing of an order of dismissal would not
be effective unless it is published andcommunicated to the officer concerned. If the
appointing authority passed an order of
dismissal, but does not communicate it to theofficer concerned, theoretically it is possible that
unlike in the case of a judicial order pronounced
in Court, the authority may change its mind anddecide to modify its order. It may be that in
some cases, the authority may feel that the ends
of justice would be met by demoting the officer
concerned rather than dismissing him. An order
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17and kept with itself, cannot be said to take effect
unless the officer concerned knows about thesaid order and it is otherwise communicated to
all the parties concerned. If it is held that the
mere passing of the order of dismissal has the
effect of terminating the services of the officerconcerned, various complications may arise. If
before receiving the order of dismissal, the
officer has exercised his power and jurisdiction
to take decisions or do acts within his authorityand power, would those acts and decisions be
rendered invalid after it is known that an order of
dismissal had already been passed against him ?
Would the officer concerned be entitled to his
salary for the period between the date when the
order was passed and the date when it was
communicated to him ? These and other
complications would inevitably arise if it is held
that the order of dismissal takes effect as soon
as it is passed, though it may be communicated
to the officer concerned several days thereafter.
It is true that in the present case, the respondent
had been suspended during the material period;
but that does not change the position that if the
officer concerned is not suspended during the
period of enquiry, complications of the kind
already indicated would definitely arise. We are,
therefore, reluctant to hold that an order of
dismissal passed by an appropriate authority and
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kept on its file without communicating it to the
officer concerned or otherwise publishing it will
take effect as from the date on which the order
is actually written out by the said authority; such
an order can only be effective after it is
communicated to the officer concerned or is
otherwise published. When a public officer is
removed from service, his successor would have
to take charge of the said office; and except in
cases where the officer concerned has already
been suspended, difficulties would arise if it is
held that an officer who is actually working and
holding charge of his office, can be said to be
effectively removed from his office by the mere
passing of an order by the appropriate authority.
In our opinion, therefore, the High Court was
plainly right in holding that the order of dismissal
passed against the respondent on the 3rd June
1949 could not be said to have taken effect until
the respondent came to know about it on the 28 th
May 1951.”
Thus termination of service takes place only after order of
dismissal served on the concerned person and not otherwise.
Consequently, it will have to be held that in the absence of proof of
service of termination order on the petitioner and in the light of
assertion of claim in statement of claim in para 2 and para 6 of his
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affidavit-evidence dated 19-10-2006 and for the reasons stated by me
earlier, the only conclusion that can be drawn is that petitioner was
never served with any dismissal order No.1791 dated 11-7-1984 and
consequently in law no termination of petitioner at all took place and
therefore, he will have to be held in the employment of respondents
ignoring the said termination order dated 11-7-1984.
9. The trial Court was much impressed with the defence taken
by respondent-management that petitioner kept quiet for 12-13 years
and thereafter approached the Conciliation Officer for the first time
and that therefore, there was a delay on his part in approaching the
Conciliation Officer. The trial Court has in this connection rejected the
contention of petitioner outright, that he was repeatedly making
representations right from the beginning to the authorities, for want of
acknowledgments of service of those representations. To my mind this
approach of the trial Court is not pragmatic and has resulted into
miscarriage of justice which would be evident from the following facts.
Along with List of document dated 8-2-2008 (record Page
128) petitioner produced eight documents out of which 1 to 7 office
copies were in his handwriting while the last document dated
14-5-2001 (Exh. W-14) is a letter issued by District Legal Aid Officer,
Sheoni (Madhya Pradesh) addressed to Secretary, Labour Ministry,
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Government of India, New Delhi. These letters 1 to 7 have been
exhibited as Exh. W-7 to Exh. W-13. It is true that there is no
acknowledgment produced by petitioner about service on addressee.
But looking to the stature of workman who was appointed as General
Majdoor and who has given a firm explanation in his cross-examination
in respect of the said representations that acknowledgments were
never given to him coupled with his assertion in para 5 of his affidavit-
evidence dated 19-10-2006 and in absence of any challenge to the
same and his explanation for not obtaining receipt coupled with letters
issued by him on 11-6-1984, 13-6-1984, 17-6-1984, 13-6-1987 and
20-6-1988 for mere want of acknowledgments, his explanation could
not be rejected. Further the petitioner produced 14 letters with list of
document dated 23-04-2007 of which 1 to 5 were already produced on
record along with other list. Then the letters from Sr. Nos. 6 to 14 are
for the period from 13-5-1989, 16-5-1989, 13-9-90, 16-6-90, 20-12-96,
15-9-90, 21-7-97, 20-8-98, 21-12-98. All these letter have been
proved by him in his evidence though subject to objection, but then
objection appears to be that they were not original therefore
application dated 14-3-2008 for adducing secondary evidence was
filed. This application is on affidavit and except saying ‘objected’ there
is no opposition to it. I am satisfied with the reasons given in the
application for adducing secondary evidence. I herewith allow the
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same since no orders were passed by the trial court on this application.
The objection is therefore overruled. From the above correspondence
it clearly appears to me that poor and illiterate petitioner was
repeatedly making correspondence here and there without
understanding the exact authority and place where he should address
his industrial dispute. It appear that as early as on 16-5-1988
(Exh. W-12) he approached the Legal Aid Authority at Sheoni (Madhya
Pradesh) which vide letter dated 20-12-1989 (Doc. No.10, Record page
95), had sent a reminder to respondent seeking information about the
petitioner with reference to letter No.1242 dated 16/24-7-1989; but his
grievance was for the first time taken up by Legal Aid Committee on
14-5-2001 (Exh.W-14) with Ministry of Labour, Government of India.
This letter (Exh.W-14) shows that from 1989 till 1999, District Legal Aid
Committee, Sheoni (Madhya Pradesh) had made correspondence about
the case of the petitioner and District Judge, Chandrapur was also
informed about it. It appears that on 20/21-9-2000 respondent-W.C.L.
wrote a letter to Shri R.C. Manocha, Section Officer, Ministry of Coal,
New Delhi informing about status of petitioner. This letter dt.
20/21-9-2000 issued by respondent itself to Ministry of Coal about the
petitioner clearly shows that the issue was pending consideration with
the Government and that was only so due to persistent
correspondence made by petitioner on 11-6-1984, 13-6-1984,
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17-6-1984, 13-6-1987, 20-6-1988, 13-5-1989, 16-5-1989, 16-6-1990,
13-9-1990, 15-9-1990, 20-12-1996, 21-7-1997, 20-8-1998, 21-12-1998.
In the light of correspondence by District Legal Committee, Sheoni
(Madhya Pradesh) and dated 20/21-9-2000 by respondent, I reject the
contention that petitioner did not approach the authority for 12-13
years merely because he did not have the acknowledgments. On
13-9-1989 also petitioner had written to the Legal Aid Committee,
Sheoni (Madhya Pradesh) vide Page 92 of the record (D-8). It clearly
proves that he was searching for legal aid because he did not know
which was the proper authority and it was for the first time in 1997 he
knew about the proper authority to be approached. He was not a
member of any union and when he approached some union, none
helped him. He filed application for Conciliation vide dated 21-7-1997
by visiting the office A.L.C. (Central), Chandrapur. It is note worthy that
respondents in the light of above pleadings, documents and evidence
on the question of delay, did not adduce any evidence to show that not
a single representation was made to them or received by them and
though Mr. Kishor Barve and other witness were examined none of
them stated anything on that aspect. In the absence of evidence in
rebuttal, from the side of respondent-management it will have to be
held that petitioner could not be blamed for the alleged delay of 12
years in approaching the Conciliation Officer. The only reason for
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confusion carried by petitioner was that he was not served with the
termination order and therefore, did not know what to do and further
that he did not understand which authority is to be approached for his
grievances since he was all the while in the belief which is clear from
the perusal of various letters that he was in employment. After all this
Court cannot be ignore the ground reality about education and
background and the place from where the petitioner comes namely a
small village in Sheoni Tahsil of Madhya Pradesh. Hence, I hold that
there was no delay on the part of petitioner in approaching the
authority for making reference about the industrial dispute. The
decisions cited by Mr. Ashish Mehadia on this point are not applicable
on facts.
10. Coming to the merits of the evidence that was adduced
before the tribunal. I am aware that it would not be possible for me to
re-appreciate the evidence or substitute my opinion on the
appreciation of evidence made by Labour Court. But then in the wake
of perverse approach on the part of Labour Court or disregard to the
settled legal principles and also having regard to the fact that
witnesses deposed before the Court for the first time after 23 years in
the absence of any previous statements, I am entitled to interfere even
on the questions of fact and appreciation of evidence. In this
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24
background, I proceed to deal with the matter on merits. Perusal of
the chargesheet that was served on petitioner in English language
shows that factually the charge levelled against him was that he
entered the office of Project Officer and during talk with him he
demanded advance of Rs.2000/- (Rs. Two thousand) else he would
publish some objectionable matters against the management of Rajur
Colliery in some newspaper or inform the police department. When
the Project Officer refused to give him advance, he threatened him
with dire consequences. igThis is the only charge factually levelled
against the petitioner. It is nowhere brought on record by respondent
that petitioner who was appointed as ‘General Majdoor’ knew English
language. Even if Petitioner did not say about it, this Court cannot
ignore the ground reality, particularly when industrial dispute is by a
‘Labourer’. There is absolutely no other charge particularly regarding
hurling of abuses or filthy abuses at the Project Officer in this
chargesheet. This is specifically being mentioned because the trial
Court was much impressed with the evidence that filthy abuses were
hurled by the petitioner at the Project Officer, and therefore the
petitioner was not a fit person to be retained in service. Now the
question is in the absence of any charge regarding filthy abuses in the
chargesheet can the petitioner be held guilty of that. In my opinion,
the answer has to be firm ‘no’. Therefore what only remains is threat
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25
with dire consequences to the Project Officer to publish or to inform
the police department if advance of Rs.2000/- ( Rs. Two thousand ) was
not paid to the petitioner. The evidence of three witnesses Shri Kishor
Barve, Shri Chandu Khond and Shri Pratap Kashyap is required to be
scanned. At the outset, it must be noted that in all these three
affidavit-evidence actual words of filthy language have been quoted
word to word same without a single word missing its place. In the
earlier affidavits Shri Chandu Khond and Shri Pratap Kashyap, which
were not present on 16-11-2007 there was no mention about filthy
abuses. Now these abuses were said to have been given on
06-02-1984 and this affidavits were sworn on 20-9-2007 and
15-11-2007 i.e. after 23 years which in my opinion is nothing but
exaggeration of the evidence any how to secure conviction from the
Labour Court. This is the evidence in the absence of any charge on
abuses or filthy abuses. It is also difficult to believe that Shri Chandu
Khond and Shri Pratap Kashyap, who were outside the Chamber at
some distance heard each and every word of the abuses in the same
sequence as has been described in their affidavits. It is in this
background the Court has to be on guard while appreciating the
evidence of these witnesses. I am required to do this exercise because
the learned Labour Court has not done it.
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26
11. Coming to the first part of evidence of these witnesses the
story narrated by Shri Chandu Khond and Shri Pratap Kashyap is that
Shri Kishor Barve refused to sanction the loan and thereupon
petitioner threatened him with dire consequences. Shri Kishor Barve
has no where stated in his affidavit about loan or sanctioning of loan
but stated that he was demanding advance of Rs.2000/-(Rs. Two
thousand). There is thus a material variance in evidence of these
witnesses who deposed in 2007 in respect of incident of 6-2-1984. The
net result of above discussion is that while separating shaft from the
grain the only evidence of Shri Kishor Barve which could at best be
believable is that on 6-2-1984 petitioner entered the chamber of Shri
Kishor Barve and asked him to pay Rs.2000/- (Rs. Two thousand ) as
advance and if not paid he would publish some objectionable matter
against the Rajur Colliery or inform the police department. This part of
evidence in my opinion amounts to a minor threat in sudden anger of a
‘labourer’. Further evidence that Shri Kishor Barve refused to give
advance, he threatened him with dire consequences is difficult to
believe as no complaint was lodged with Police Station by him nor any
evidence has come on record that he immediately reported the
authorities about the said threats which shows he never took those
threats by General Majdoor seriously. But then looking to the above
evidence after 23 years for the first time in Court against the petitioner
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27
about threat in the background of his demand of Rs.2000/- (Rs. Two
thousand) as advance else he would publish or inform the police
station, in my opinion, the punishment is certainly too disproportionate
since the serious charge regarding giving of filthy abuses has fallen to
the ground and therefore was it proper to put a workman to economic
death merely because he threatened his superior officer to publish or
report to police station for not making payment of advance of Rs.
2000/- (Rs. Two thousand) to him and in the absence of any previous
past history or bad record of such employee
ig Was the employee not
entitled to a chance to improve. It has been held by the Hon’ble
Supreme Court in the case of Colour-Chem Ltd. vs. A.L. Alaspurkar and
others reported in (1998) 2 SCC 192 in Para 13 as under;
“———-Consequently it must be held that when
looking to the nature of the charge of even
major misconduct which is found proved if the
punishment of dismissal or discharge as
imposed is found to be grossly disproportionate
in the light of the nature of the misconduct or
the past record of the employee concerned
involved in the misconduct or is such which no
reasonable employer would ever impose in like
circumstances, inflicting of such punishment
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28itself could be treated as legal victimisation. On
the facts of the present case there is a clear
finding reached by the Labour Court and as
confirmed by the Industrial Court that the
charges levelled against the respondent-
delinquents which were held proved even
though reflecting major misconducts, were not
such in the light of their past service record as
would merit imposition
ig of punishment ofdismissal. This factual finding would obviously
attract the conclusion that by imposing such
punishment the appellant-management had
victimised the respondent-delinquents.
Imposition of such a shockingly disproportionate
punishment by itself, therefore, has to be
treated as legal victimisation apart from not
being factual victimisation as on the latter
aspect the Labour Court has held against the
respondent-workmen and that finding has also
remained well sustained on record. Thus it
must be held that the management even though
not guilty of factual victimisation was guilty of
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29
legal victimisation in the light of the proved
facts which squarely attracted the ratio of the
decisions of this Court in Hind Construction and
Bharat Iron Works.——-”
In my opinion in the facts of this case; ultimate punishment
from dismissal of service could not have been upheld by the tribunal as
has been done by the impugned award. The submission that petitioner
was a temporary employee and therefore, no enquiry was even
necessary is liable to be rejected outright since this stand was never
taken in the Court below or at any point of time and further the
respondent-management itself agreed to prove the misconduct before
the Court on the same chargesheet which was issued by them.
Therefore such a plea cannot be raised.
12. Taking over all view of the journey undertaken by the
petitioner for the period from 1984 till this date the effect thereof on
his family members and on himself and on his mental condition, in my
opinion, the appropriate punishment at this stage would be to issue
him a ‘warning’ and to deprive him of 50% back wages. In the light of
decision of the Hon’ble Supreme Court in the case of B.C. Chaturvedi
vs. Union of India and others, AIR 1996 SC 484, I am entitled to impose
appropriate punishment to shorten the litigation. The respondent-
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30
management ought to have been careful before imposing such a harsh
punishment as per law existing then also, but that did not happen. I
therefore hold that the award made by the Labour Court upholding the
order of dismissal of the petitioner or holding dismissal from service of
petitioner as the proper punishment is illegal and consequently I hold
that he must be deemed to be in service. As discussed by me earlier it
is not that the petitioner was sleeping about 12 to 13 years in the
matter of dismissal of his service but for want of proper and timely
legal aid. I therefore hold that the petitioner cannot be deprived of the
entire back wages after dismissal from service nor for continuity of
service. In cross-examination of petitioner by the management, he has
clearly deposed that he and his family members could not get any
gainful occupation or employment and sometimes he used to sell
vegetables, but was required to pay rent of a rented house. I have
therefore no difficulty in coming to a conclusion that petitioner was not
proved to have been in gainful avocation. Considering the
pronouncement of law in the case of J.K. Synthetics vs. K.P. Agrawal
and another reported in (2007)2 SCC 433, and the fact that lump-sum
payment of 50% back wages would be enough compensation for the
entire episode, in my opinion, petitioner can be awarded only 50%
back wages. I have already held that punishment of ‘warning’ and
depriving him of 50% back wages would subserve the ends of justice.
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31
In the result I make the following order.
Writ Petition No.3618/2008 is partly allowed. The impugned
Judgment and Award dated 21-5-2008 in Reference No.
CGIT/NGP/72/2001 is quashed and set side. The reference made to
Central Government Industrial Court-Cum-Labour Court is answered
partly in the affirmative.
Termination/dismissal from service of petitioner as General
Majdoor on 11-7-1984 is set aside. Punishment of ‘warning’ shall be
recorded by respondent. The petitioner shall be reinstated by
respondent in his former post forthwith and shall be granted continuity
of service with all benefits accruing therefrom, and 50% back wages
till his actual reinstatement within ten weeks from today. The
respondent shall pay costs of Rs.5,000/- (Rupees Five Thousand Only)
of this petition to the petitioner forthwith.
JUDGE
Later On:-
Mr. Mehadia, learned counsel for respondent prays for six
weeks time to approach the appellate Court. This Court grants time of
four weeks to approach the appellate Court. Till then, this judgment
shall stand suspended.
JUDGE
adgokar
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