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I.E.L, Ltd., Giridih v. Labour Court, Dhanbad, And Others
Factual and Procedural Background
This application challenges the Labour Court, Bokaro Steel City (respondent 1)'s award dated 6 October 1986 (pronounced 20 November 1986) in Reference Case No. 7 of 1983, which answered a statutory reference in favour of five workmen and granted reinstatement with half back-wages.
The petitioner operates a factory manufacturing explosives at Gomia. A work-reward agreement granting incentives had been in force; installation of a Rollex plant in 1982 temporarily increased incentives, which the management stopped in December 1982, leading to worker protest. On 22 February 1983 workmen resorted to strike and, on that date, Deputy Plant Manager Sri Abhijit Chatterjee was allegedly assaulted inside the factory. Criminal proceedings followed.
The management initiated disciplinary proceedings against five named workmen for misconduct under the company's certified standing orders and dismissed them by orders dated 23 March 1983 and 5 April 1983. The State of Bihar referred for adjudication (notification dated 15 April 1983) the question whether those dismissals were justified (Reference No. 7 of 1983). The Labour Court found the workmen guilty of misconduct but also held there had been unfair labour practice, victimisation and discrimination by the management, and awarded reinstatement with half back-wages.
The petitioner-company filed the present writ challenging that award. The writ court considered preliminary and substantive issues, evidence, multiple legal authorities and the subsequent acquittal of the workmen in the criminal case (a later event). The Court ultimately modified the Labour Court's award in part and allowed the writ application in part.
Legal Issues Presented
- Whether the State of Bihar's reference by notification dated 15 April 1983 (Reference No. 7 of 1983) was bad in law (i.e., whether the reference was dehors the proper scope because some demands pre-dated the dismissals).
- Whether, in view of the subsequent criminal acquittal of the workmen, the orders of dismissal passed by the management became non est in law (i.e., whether acquittal in criminal trial necessarily invalidates departmental dismissal).
- Whether, having found the workmen guilty of grave misconduct, the Labour Court (respondent 1) should nonetheless have awarded reinstatement with half back-wages, or whether that relief was inappropriate.
Arguments of the Parties
Petitioner-Company's Arguments (Sri B.K. Dey)
- The reference was bad in law because the statements of demands annexed to the reference showed demands raised prior to the orders of dismissal; those earlier demands could not form the basis for making the reference.
- Respondent 1 lacked jurisdiction to grant relief because the factory area is a protected zone governed by the Explosives Act and Rules, and respondent 1 should not have granted relief after finding the workmen had assaulted a senior officer.
- If respondent 1 had power under S.11-A of the Industrial Disputes Act to interfere with quantum of punishment, it should have exercised judicial discretion and weighed circumstances before granting reinstatement; there was no basis to interfere with management's disciplinary discretion.
- There was nothing on record to show the dismissal was shockingly disproportionate to the misconduct.
- Even if the workmen had a grievance, they should not have assaulted a senior officer nor gone on an illegal strike; the assault and riotous behaviour were serious misconduct (relied on Bank of India v. T.S. Kelawala about go-slow being serious misconduct).
- Respondent 1 erred in finding victimisation when, according to the petitioner, management had not retaliated (it allowed workmen to remain in quarters, paid Rs. 500 per month as directed by the Labour Minister, implemented ministerial directives, and sought to drop criminal proceedings under S.107 Cr.P.C.).
Workmen / Respondent-Union's Arguments (Sri K.D. Prasad)
- Respondent 1's factual findings established unfair labour practice and victimisation by the management, and the workmen had unblemished past records; therefore the writ court should not interfere under Articles 226 and 227 with respondent 1's award of reinstatement with half back-wages (relied on Jitendra Singh Rathod v. Baidyanath).
- After the Labour Court's award the concerned workmen were acquitted in the criminal case and the revision against acquittal was dismissed; this acquittal supports the contention that the dismissals were legally bad.
- The acquittal in criminal trial meant the charges could not sustain departmental dismissal; relied on several authorities (Qamarali Wahid Ali, Kashi Nath, Mohan Lal, Kundan Lal, Kundan Lal v. Delhi Administration etc.).
- Where victimisation is found on the facts, the Court should uphold the Labour Court's finding; also, if remand is inappropriate, monetary compensation could be awarded instead (relying on Express Newspaper v. Labour Court, D.P. Maheswari, Naval Kishore).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bank of India v. T.S. Kelawala [1990 — II L.L.N 251] | Authority that a "go-slow" tactic is serious misconduct and may attract disciplinary action including dismissal. | Quoted by the Court (para 88) to note that certain forms of industrial action and covert misconduct are serious; used to reinforce that riotous/disciplinary breaches (including go-slow) are not trivial. |
| Jitendra Singh Rathod v. Sri Baidyanath Ayurved Bhawan Ltd. [1984 — I L.L.N 649] | Relied upon by the workmen's counsel in support of non-interference with a Labour Court award where management found guilty of victimisation. | Cited by the workmen's counsel; the Court recorded the reliance but the text does not state that the precedent changed the Court's outcome — it was part of submissions opposing interference. |
| Qamarali Wahid Ali v. State of Madhya Pradesh [1959 — I L.L.J 47] | Authority discussed in relation to the effect of criminal acquittal on disciplinary proceedings (facts differ in that case). | The Court distinguished the case on its facts: in Qamarali the criminal court found prosecution version wholly wrong and acquittal was of a different character; here the acquittal was on benefit of doubt and not an honourable acquittal. |
| Kashi Nath v. General Manager, North Eastern Railway [1974 — I L.L.N 214] | Dealt with dismissal based upon a conviction of a criminal court. | The Court noted this authority concerned cases where dismissal followed conviction; it observed that the present facts differ (no conviction-based dismissal here). |
| Mohan Lal v. Union of India [1982 — II L.L.J 174] | Consideration of rule 54(3) of the Fundamental Rules: acquittal on benefit of doubt may qualify period on suspension as duty; also departmental proceedings may follow acquittal. | Quoted to support the proposition that acquittal on benefit of doubt does not preclude departmental proceedings and that departmental relief under FR 54(3) may apply; used to reject an absolute bar arising from acquittal. |
| Kundan Lal v. Delhi Administration [1976 (1) S.L.R 133] | Example where departmental action was taken two years after an honourable acquittal (context on effect of acquittal). | Discussed as part of authorities cited by counsel; the Court observed differences in facts and did not treat it as determinative here. |
| Express Newspaper v. Labour Court [1964 — I L.L.J 9] | Principle that High Court should not disturb a Labour Court's finding of victimisation unless error apparent on the face of the record or no evidence supports it. | The Court held that this decision did not assist respondent 1 because here the Labour Court (respondent 1) had committed an error apparent on the face of the record by taking irrelevant considerations and failing to take relevant ones. |
| D.P. Maheswari v. Delhi Administration [1984 — I L.L.N 1] | Authority referenced for the proposition that the Court, instead of remanding, may award monetary compensation in suitable cases. | Cited by workmen's counsel in support of awarding compensation instead of remanding; the Court recorded the submission but did not adopt remand and instead modified relief as appropriate on the facts. |
| Naval Kishore v. Darbshaw B. Curse Jee's Sons [1984 — II L.L.J 473] | Another authority cited in connection with the power to award compensation rather than remand. | Recorded as relied upon by the workmen; the Court noted the submission but disposed of the matter on its own view of justice without a remand. |
| Spadigan v. State of Kerala [1970 — I L.L.J 718] | Held that acquittal in criminal case is not a bar to departmental proceedings; criminal and disciplinary proceedings serve different objects and standards of proof differ. | Relied upon by the petitioner's counsel and cited by the Court to support the proposition that criminal acquittal does not automatically invalidate disciplinary proceedings. |
| Kamani Properties Ltd. v. State of West Bengal [1990 — II L.L.N 996] | Principle that a writ court ordinarily should not take into account documents which were not on the records of the tribunal when exercising certiorari jurisdiction. | Used to observe that subsequent events (like an acquittal occurring after the tribunal's record) are not normally considered in certiorari proceedings. |
| Mohammed Ismail v. Choudhury Sia Saran Sinha [1962 — I L.L.J 519] | Distinction in scope of enquiry where managerial enquiry was held properly versus cases where no chargesheet/enquiry was held; in the former Tribunal should not interfere unless unfair practice/victimisation is found. | Quoted at length: applied to explain when a Tribunal's interference is limited (i.e., if management held a proper enquiry), and when merits are open (i.e., when no proper enquiry was held). |
| J.K. Cotton Spinning & Weaving Co. Ltd. v. Its Workmen [1965 — II L.L.J 153] | When a domestic enquiry is conducted independently of a criminal court's judgment, the domestic enquiry findings are not bad in law merely because of the criminal judgment. | Relied upon to support the proposition that domestic enquiry findings can stand even when a criminal court later gives a different outcome, provided the enquiry was independent. |
| G. Ravindra Nair v. Chairman, Cochin Port Trust [1979 — I L.L.J 94] | Reiterates that departmental proceedings require preponderance of probability while criminal proceedings require proof beyond reasonable doubt. | Applied to justify that acquittal in criminal court (higher standard) does not automatically negate departmental findings based on preponderance of probability. |
| Maharashtra State Board v. K.S. Gandhi [(1991) 2 SCC 716] | Supreme Court statement that in domestic enquiry the standard of proof is preponderance of probabilities and not proof beyond reasonable doubt; probative value depends on facts and circumstances. | Quoted by the Court to reinforce the standard applicable in domestic/disciplinary enquiries and to reject the contention that criminal acquittal necessarily invalidates disciplinary findings. |
| Secretary of State v. Tameside [1976 (3) A.E.L.R 655] | Authority on misdirection in law where an authority fails to ask the right question or take reasonable steps to inform itself. | Referenced for the principle that failure to take relevant considerations into account or taking irrelevant ones amounts to a misdirection (error of law) and vitiates the decision. |
| Sunil Kumar Roy v. Union of India [1977 B.B.C.J 612] | Division Bench guidance that a finding of mala fide by a Tribunal should be supported by sufficient and proper evidence and not be capriciously recorded. | Applied by the Court to assess whether respondent 1's finding of mala fide/victimisation was supported by evidence — the Court concluded it was not. |
| Syndicate Bank v. Its Workmen [1966 — I L.L.J 440] | Supreme Court precedent where a finding of mala fide by a Tribunal was set aside for lack of proper basis. | Referred to in assessing the correctness and sufficiency of Tribunal findings of mala fide and victimisation; used analogously to caution against upholding unsupportable findings. |
| Bareilly Electricity Supply Co. Ltd. v. Sirajuddin [1960 — I L.L.J 556] | Followed Syndicate Bank; concerns the proper basis for finding mala fide by a Tribunal. | Referred similarly to underline that mala fide findings must be based on proper evidence. |
| Tata Oil Mills Co. Ltd. v. Workmen [1964 — II L.L.J 113] | Holds that absence of stay of domestic enquiry pending criminal proceedings does not itself establish mala fide; assault outside factory may still be misconduct. | Applied to support that domestic enquiry and disciplinary consequences may follow even when criminal proceedings are pending or later result in acquittal; used to reject an absolute bar to departmental action. |
| O.P. Bhandari v. Indian Tourism Development Corporation Ltd. [1986 — II L.L.N 1051] | Supreme Court held 3.33 years' salary as adequate compensation where court was not inclined to order reinstatement. | Referenced to note that the Court's award of salary until the date of the Labour Court's award exceeds the 3.33 years benchmark used in that authority. |
| De Smith, Judicial Review of Administrative Action (Fourth Edn.) | Defines "error apparent on the face of the record" to include taking irrelevant considerations into account or failing to take relevant considerations into account. | Quoted by the Court to explain why respondent 1's finding of victimisation was an error apparent on the face of the record when it relied on irrelevant/extraneous matters. |
Court's Reasoning and Analysis
The Court undertook a structured examination of the three central questions raised.
Question A: Validity of the State's Reference
The Court rejected the petitioner's contention that the reference was bad in law. It held that the State, when issuing the notification of reference, properly annexed the statements of demand in terms of the Industrial Disputes (Bihar) Rules and that earlier resolutions/demands were considered only to establish the factual background and the ongoing disciplinary proceedings. The Court concluded that taking into account a later letter (7 April 1983) requesting reconsideration of dismissals and the earlier demands did not render the reference invalid. The State's exercise of jurisdiction under S.10(1)(c) of the Industrial Disputes Act was not illegal.
Question B: Effect of Subsequent Criminal Acquittal
The Court considered whether the criminal acquittal (rendered during pendency of the writ) negatived respondent 1's finding of misconduct. It observed:
- Generally, documents not on the record of the tribunal are not ordinarily considered in a writ of certiorari (Kamani Properties).
- A criminal acquittal does not automatically bar departmental or disciplinary proceedings because the criminal standard (proof beyond reasonable doubt) is higher than that applicable in disciplinary/domestic enquiries (preponderance of probabilities) — the Court cited Mohammed Ismail, J.K. Cotton, G. Ravindra Nair, Maharashtra State Board v. K.S. Gandhi and Spadigan.
- The acquittal in this case was on the benefit of doubt and not an honourable acquittal establishing the prosecution version was false; therefore it did not nullify respondent 1's findings which were based on evidence available during the tribunal proceedings.
- The Court further noted that the workmen were charged on multiple counts and the criminal case focused on the assault of Sri Chatterjee; thus, the acquittal on that charge did not necessarily affect other misconduct findings by respondent 1.
Consequently, the Court held that the criminal acquittal did not vitiate the Labour Court's findings of misconduct.
Question C: Whether Labour Court Should Have Ordered Reinstatement
On respondent 1's substantive findings: respondent 1 found the five workmen guilty of assault and misconduct under Clauses 28(4) and 28(8) of certified standing orders, but also found management guilty of victimisation, mala fide conduct, unfair labour practice and discrimination, and therefore ordered reinstatement with half back-wages.
The writ court accepted that respondent 1's factual finding that the workmen committed assault was not under challenge. However, it scrutinised respondent 1's findings of victimisation and mala fide. The Court concluded:
- The plea of victimisation must be specifically pleaded and proved; here the plea was vague and lacked specific instances. Witnesses for the workmen did not provide specific instances of victimisation.
- Respondent 1 erred by considering matters extraneous and irrelevant (e.g., the filing of criminal case and counter-case, the management's gestures like allowing quarters and partial implementation of ministerial directions) in reaching a conclusion of victimisation; such consideration amounted to an error apparent on the face of the record (citing De Smith and Secretary of State v. Tameside).
- Respondent 1 should not have relied on the alleged unfairness of the domestic enquiry as a ground for victimisation once it had separately addressed fairness of enquiry in a preliminary order; only where no managerial enquiry was held would the merits of dismissal be fully open.
- The finding of discrimination was unsupported because the Labour Court itself found only these five workmen had assaulted Chatterjee; different treatment is justified where persons are not similarly situated.
- Respondent 1's conclusions of mala fide and victimisation were based on no proper material and therefore unsustainable (citing Sunil Kumar Roy, Syndicate Bank, Bareilly Electricity precedents about proper basis for mala fide findings).
While holding that the workmen had committed grave misconduct (serious assault in a sensitive, protected explosive area), the Court also noted procedural unfairness in the earlier disciplinary process (respondent 1 had already found the domestic enquiry to be unfair in an order dated 9 May 1985) and that management had accepted certain ministerial directions and later held fresh enquiry.
Balancing these factors, the Court concluded that full reinstatement would not be appropriate but that justice required payment of salary up to the date of the Labour Court award. The Court observed that interim payments totaling Rs. 56,900 each had already been made to the workmen and those sums need not be refunded.
Holding and Implications
Core Ruling: The writ application is allowed in part — the impugned Labour Court award dated 6 October 1986 is modified to the extent described by the Court (payment of salary to the concerned workmen up to the date of passing of the award), and the parties shall bear their own costs.
Direct consequences for the parties (as stated in the opinion):
- The Labour Court's award of reinstatement with half back-wages was modified: the Court directed that the concerned workmen be paid their salary till the date of passing of the award (the judgment indicates this relief was substituted in the interest of justice).
- The management had already paid interim sums amounting to Rs. 56,900 to each concerned workman (total Rs. 2,84,500); those sums are not to be refunded.
- The parties shall pay and bear their own costs.
Broader legal implications: The opinion does not purport to lay down any new legal precedent; it applies existing authorities and principles (notably on the distinction between criminal and disciplinary standards of proof, and on the requirement for proper proof of victimisation) to the facts and modifies the award in the exercise of judicial review. The Court specifically found respondent 1's finding of victimisation to be vitiated by errors apparent on the face of the record.
1. This application is directed against the award, dated 6 October, 1986 (pronounced on 20 November, 1986), as contained in Annexure 4 to the writ application, passed by the Presiding Officer, Labour Court, Bokaro Steel City, Dhanbad (respondent 1) in Reference Case No. 7 of 1983 whereby and whereunder he answered the reference in favour of the workman by awarding a relief of reinstatement with half back-wages.
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 20 March, 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 overall 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 22 February, 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-determined 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 20 February, 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 Sri Chatterjee, Deputy Plant Manager and Sri Daljit Singh, Plant Superintendent, there and allegedly seeing the representatives of the workmen, Sri 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 23 February, 1983, which has been made a part of the notification, dated 24 February, 1983, referring the dispute for adjudication to respondent 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 22 February, 1983, disciplinary proceedings were initiated as against the concerned workmen for committing misconduct which came within the purview of Cls. 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, chargesheet, 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 23 March, 1983 and 5 April, 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 S. 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 chargesheet 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 26 April, 1983 about the dismiss al 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 S. 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 15 April, 1983, whereby and whereunder it referred the following dispute for adjudication of respondent 1:
“Whether the dismissal of Sarvasri Pashupat 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 1 both the parties filed their respective written statements. Respondent 1 took up a preliminary issue with regard to the legality or validity of the disciplinary proceeding and by an order, dated 9 May, 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 1. On the basis of the pleadings of the parties as also the evidence adduced on their behalf, respondent 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 victimisation 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. Respondent 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 victimisation 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 reinstate with half back-wages.
14. Sri B.K Dey, learned counsel appearing on behalf of the petitioners, raised two contentions in support of this case.
15. Learned counsel firstly submitted that from a perusal of the statements of demands, dated 24 February, 1983 and 7 April, 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.
16. Learned counsel next contended that in View of the fact that respondent 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 Sri Abhijit Chatterjee, it had no jurisdiction to grant relief to the concerned workmen.
17. According to the learned counsel, respondent 1 although had power to interfere with the quantum of punishment, in terms of S. 11-A of the said Act, it should have exercised its judicial discertion in the matter and ought to have weighed the circumstances of the case before granting a relief of reinstatement.
18. 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, respondent 1 ought not to have interfered with the discretion exercised by the management.
19. 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.
20. Learned counsel in this connection has relied upon a recent decision of the Supreme Court in Bank of India v. T.S Kelawala [1990 — II L.L.N 251], and submitted that in that case it has been stated that even a go-slow tactic adopted by the workmen is a serious misconduct.
21. It was further submitted that respondent 1 did not apply its mind at all with regard to its finding of victimisation 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 S. 107 of the Code of Criminal Procedure.
22. Sri 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 respondent 1 and submitted that in view of the fact that the management has been found guilty for resorting to victimisation 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 Arts. 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 Jitendra Singh Rathod v. Sri Baidyanath Ayurved Bhawan, Ltd. [1984 — I L.L.N 649].
23. 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
24. 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 [1959 — I L.L.J 47], Kashi Nath v. General Manager, North Eastern Railway, Gorakhpur [1974 — I L.L.N 214], Mohan Lal… v. Union Of India Etc.… [1982 — II L.L.J 174] and Kundan Lal v. Delhi Administration [1976 (1) S.L.R 133].
25. Learned counsel further submitted that the finding of victimisation is a finding of fact. Learned counsel has strongly relied upon a decision in this connection of the Supreme Court in Express Newspaper v. Labour Court [1964 — I L.L.J 9], and submitted that in view of the decision of the Supreme Court in D.P Maheswari v. Delhi, Administration [1984 — I L.L.N 1], 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 [1984 — II L.L.J 473].
26. Sri 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 v. State of Kerala [1970 — I L.L.J 718].
27. 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 15 April, 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 respondent 1 having found that the concerned workmen are guilty of grave misconduct should have passed an award of reinstatement with half back-wages?
Re: Question A:
28. As noticed hereinbefore, admittedly, the incident took place on 22 February, 1983 and the orders of dismissal which are contained in Annexures 2 to 2/4 were passed on 23 March, 1983 against Sri Kuldip Narayan Singh (Annexure 2); Madan Mohan Sahu (Annexure 2/1); Sri Pashupati Nath Singh (Annexure 2/2); and on 5 April, 1983 as against Sri Kashi Kumar (Annexure 2/3) and Sri Ramjee Prasad (Annexure 2/4).
29. The State of Bihar issued the notification in question 15 April, 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 24 February, 1983, 23 February, 1983 and 7 April, 1983. From the demand, dated 24 February, 1983, it appears that a resolution was adopted by the respondent-union in its meeting, dated 24 February, 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 executive 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 Mazdpor Union also accepted a resolution in a meeting held at 11.45 P.M on 22 February, 1983 making similar allegation and raised the following demands with the management:
(1) Chargesheet 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.
30. However, from a perusal of a letter, dated 7 April, 1983, issued by one Sri 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.
31. According to Sri Dey, learned counsel appearing on behalf of the petitioner, as the concerned workmen were dismissed from services by orders, dated 23 March, 1983 and 5 April, 1984, the demand raised by the aforementioned unions on 22 February, 1983 and on 27 April, 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.
32. 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.
33. 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 7 April, 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.
34. 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 S. 10(1)(c) of the Industrial Disputes Act, 1947, in my opinion, it cannot be said that any illegality has been committed thereby.
Re: Question B:
35. It is admitted that when the proceedings before respondent 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 14 September, 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, First Class, Bermo at Tenughat. The order sheet, dated 14 September, 1990, has been marked as Annexure A to the said supplementary counter-affidavit.
36. 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 of 1990-R and the same has been dismissed by an order, dated 25 March, 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 Para. 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 back-wages.”
37. As noticed hereinbefore, Sri 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 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.
38. Reference in this connection may be made to Kamani Properties, Ltd. v. State of West Bengal [1990 — II L.L.N 996].
39. However, it is settled law that a disciplinary proceeding 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.
40. In Spadigan v. State of Kerala [1970 — I L.L.J 718] (vide supra), it was held that the object of criminal law and its enforcement through criminal proceedings 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 in 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.
41. In Mohammed Ismail v. Choudhury Sia Saran Sinha [1962 — I L.L.J 519], 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 S. 1-Q of the Industrial Disputes Act in a case which comes before it after the management has taken proper steps for service of a chargesheet 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 chargesheet qr without holding a managerial enquiry. In the former case, the Tribunal should not interfere unless it finds unfair labour practice or victimisation 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.”
42. 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 chargesheet and to hold an enquiry vitiated the order of dismissal.”
43. In J.K Cotton Spinning and Weaving Company, Ltd. v. Its workmen [1965 — II L.L.J 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.”
44. In G. Ravindra Nair v. Chairman, Cochin Port Trust [1979 — I L.L.J 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.
45. 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 iniegra.
46. In a recent decision of the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary School v. K.S Gandhi [(1991) 2 SCC 716], 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 guaged from facts and circumstances in a given case.”
47. As indicated hereinbefore, Sri 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.
48. In Qamarali Wahid Ali v. State of Madhya Pradesh [1959 — I L.L.J 47] (vide supra), 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.
49. In Kashi Nath v. General Manager, North Eastern Railway [1974 — I L.L.N 214] (vide supra), 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.
50. In Kundan Lal v. Delhi Administration, Delhi [1976 (1) S.L.R 133] (vide supra), the departmental action was taken against the deliquent employee two years after the proceeding was honourably acquitted and the State's appeal against the acquittal was also dismissed.
51. In Mohan Lal… v. Union Of India Etc.… [1982 — II L.L.J 174] (vide supra), 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:
“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 S. 294 of the Indian Penal Code. Indecent behaviour with a women 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.
52. From the order of acquittal, dated 14 June, 1990, passed by Sr. C.B Sinha in I.E.L.P.S Case No. 14 of 1983 (G.R No. 145 of 1983) 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.
53. Further it may be mentioned that whereas the incident took place on 22 February, 1983, the judgment by the criminal Court was passed on 14 September, 1990, that is, after a long lapse of seven years; whereas before respondent 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 respondent 1 that the management has been able to prove the charges of misconduct as against the concerned workmen.
54. 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 Sri 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 respondent 1.
55. 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 respondent 1 has awarded half back-wages to the concerned workmen and not the full back-wages. 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 back-wages.
Re Question C:
56. As noticed hereinbefore, the concerned workmen were charged for commission of misconduct under Cls. 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. Charterjee, Deputy Plant Manager, Blasting Department, came there, you and some others, without provocation, physically assaulted Sri A. Chatterjee resulting in injuries to him.
57. Respondent 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″ × 2″ upper part and 6 ¼ lower part on front of right shoulder simple injury caused by hard blunt substance.
(ii) Bruise ½″ × ½″ at the back of right ear simple caused by hard blunt substance.
(iii) Lacerated injury ½″ × ½″ on medical 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.”
58. It was further held that the defence set up by the workmen that the incident took place in the chamber of Sri Chatterjee where the workmen were assaulted by Sri Chattrajee himself was not correct as WAV. 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 blasting area office.
59. Respondent 1 held:
“Considering above/acts and circumstances and evidence on records I find and hold that the concerned workmen had indulged themselves in assaulting Sri Chatterjee causing injury on this person in the manner as stated by the witnesses of the management.”
60. Proceeding further, upon considering as to whether the concerned workmen were guilty of misconduct as envisaged under Sub-cls. (4) and (8) of standing order 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 Department endangered the life of Sri A. Chatterjee and also the life of other employees in the sense that 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 Cls. 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.”
61. Respondent 1, thereafter, took into consideration as to whether there has been unfair labour practice, victimisation, on the part of the management in view of the extreme punishment of dismissal.
62. 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 on manhandling was the common, bona fide and legitimate cause of the workers.”
63. In view of the order, dated 9 May, 1985, where the issue of the fairness or otherwise of the domestic enquiry was considered, respondent 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 S. 107, Criminal Procedure Code 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 has 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.
64. On the aforementioned reasonings, respondent 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 victimisation, mala fide unfair 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 victimisation, unfair labour practice and in the present case, as stated above, there are materials on record to hold as such.”
65. 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 S. 107, Criminal Procedure Code had also been dropped at their instance.
66. Respondent 1, however, observed:
“these acts of gesture do not at all cover their acts of mala fide victimisation, unfair labour practice and discrimination meted out to these workmen.”
67. Respondent 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.
68. The question which, therefore, arises for consideration is as to whether respondent 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.
69. The findings of fact arrived at by respondent 1 that on the basis of the evidences adduced by the management, the misconduct as against the concerned workmen have been proved, are not under challenge. As indicated hereinbefore, Sri 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 aforementioned findings of fact arrived at by respondent 1 are otherwise vitiated in law.
70. Respondent 1, as noticed hereinbefore, proceeded to consider the question of unfair labour practice, victimisation and discrimination on the part of the management, on the basis of the conduct of the parties subsequent to 22 February, 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.
71. It is now well-known that a plea of victimisation has to be specifically pleaded and proved. The onus to prove victimisation is upon a person who alleges it. The plea of victimisation raised by the concerned workmen in their written statement was absolutely vague and general in nature and no specific instance of victimisation was pleaded. Even before respondent 1, the witnesses examined on behalf of the workmen did not spell out instances showing victimisation of the concerned workmen. It is now well-known that mere allegations of victimisation is not enough. It is also a trite law that when it is found that the employee is guilty of misconduct, the question of victimisation becomes irrelevant.
72. Respondent 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 victimisation. The said question was relevant for the purpose of considering a preliminary issue relating 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.
73. Respondent 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 victimisation. 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.
74. The decision of the Supreme Court cited by Sri Prasad in Express Newspapers case [1964 — I L.L.J 9] (vide supra), is of no assistance inasmuch as therein the Supreme Court held:
“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 victimisation 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.”
75. From the discussions made hereinbefore, it is evident that respondent 1 while arriving (at a finding of fact on the alleged acts of victimisation 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 a relevant facts or extraneous consideration vitiates the order as the same amounts to error apparent on the face of the record).
76. What is an error apparent on the face of the record has been stated in De Smith's Judicial Review of Administrative Action, Fourth Edn., 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.”
77. 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.
78. Reference in this connection may be made to Secretary of State v. Tameside [1976 (3) A.E.L.R 655].
79. So far as the finding of discrimination as against the concerned workmen is concerned, the same has also no basis. Respondent 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.
80. 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.
81. There cannot be any doubt that normally the management should not make any dicrimination, 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.
82. In the instant case, respondent 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.
83. On the other hand, it has been admitted by Sri K.D Prasad that the proceedings under S. 107 of the Code of Criminal Procedure was withdrawn at the instance of the management. Respondent 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.
84. In Sunil Kumar Roy v. Union of India [1977 B.B.C.J 612], a Division Bench of this Court held, upon consideration of Syndicate Bank v. Its workmen [1966 — I L.L.J 440], Bareilly Electricity Supply Company, Ltd. v. Sirajuddin [1960 — I L.L.J 556], 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 (vide supra), the Supreme Court set aside the finding of mala fide recorded by the Tribunal which was followed in Bareilly Electricity (vide supra).
85. 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 1 are based on no material whatsoever.
86. In Tata Oil Mills Co. Ltd. v. Workmen [1964 — II L.L.J 113], 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.
87. 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.
88. In Bank of India v. T.S Kelawala [1990 — II L.L.N 251] (vide supra), the Supreme Court held us follows:
“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 recognised 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.”
89. In the instant case respondent 1 has held that the concerned workmen are guilty or 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 a visited by unauthorised persons.
90. Evidently, even after the said incident, the concerned workmen along with various other persons were proceeded against under S. 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 S. 116(3) of the Code of Criminal Procedure.
91. In Tata Oil Mills Company case [1964 — II L.L.J 113] (vide 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.
92. In view of the findings of respondent 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.
93. 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 realised 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 respondent 1.
94. 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.
95. 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.
96. In view of my findings aforementioned, it is not necessary to consider the scope of judicial review of this Court vis-a-vis S. 11 A of the Industrial Disputes Act relating to the powers of the Labour Court in the matter of quantum of punishment.
97. O.P Bhandari v. Indian Toursim Development Corporation, Ltd. [1986 —. II L.L.N 1051], 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 6 October, 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 than 3.33 years of salary.
98. 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 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.
99. In the result, the impugned award, dated 6 October, 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.
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