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Judgment
D.G.R. Patnaik, J.—In spite of service of notice upon the sole Respondent, he has not chosen to appear even today, though this case was adjourned on several dates to enable his appearance. As such, this writ application is taken up for disposal at the stage of admission itself on the merits of the writ application.
The petitioner, in this writ application, has challenged the Award dated-23.01.2004, of the Presiding Officer, Central Government Industrial Tribunal No. 2, Dhanbad, passed in Reference Case No. 105 of 1998, whereby the learned Tribunal has answered the Reference in favour of the concerned workman and against the sole Respondent.
From the facts stated, It appears that the concerned workman, Ram Lakhan Dusadh was originally appointed as a permanent Miner against permanent vacancy at Malkhera Colliery of M/s. TISCO on 11.06.1970 and at the time of his entry in service, on the basis of his declarations regarding his date of birth, the same was recorded as 08.07.1930 in his service records. Later, upon a dispute raised by the workman regarding the correctness of the entry of his date of birth in his service records, the Management referred him for his medical examination for determination of his age by the Medical Board. The Medical Board assessed the petitioner''s age and the corresponding date of birth as 17.04.1937. In consonance with the assessment made by the Medical Board, the workman''s date of birth in his service records was corrected and recorded as 17.04.1937. However, the corresponding correction in his Mining Sardar Certificate, was not made and the certificate continued to maintain the date as 08.07.1930.
It appears that the petitioner subsequently produced a Mining Sardar Certificate purported to have been issued in his name with a different date of birth, mentioned, therein, to read as 08.07.1942. Upon a suspicion that the revised date of birth may not have been recorded by the Board of Mining Examination, the matter was referred to the Board and it was confirmed that no such correction in the original Mining Sardar Certificate was made by the Board and that the workman has himself carried out certain interpolations in the Certificate to dishonestly obtain advantage in his favour.
On the charge that he has indulged in acts of misconduct in as much as
he has interpolated the Certificate issued by the Mining Board, a departmental proceeding was initiated against him after serving him with the memo of charge and after obtaining his explanations thereto. Though the Respondent-workman was called upon to participate in the departmental proceedings but he did not appear and consequently, the departmental proceeding continued ex parte and at the end of the enquiry on the basis of the findings of the Enquiry Officer, the petitioner-Management proceeded to terminate his services.
Being aggrieved with the order of termination, the workman raised an industrial dispute, which upon being referred by the Central Government to the Industrial Tribunal vide Reference Case No. 105 of 1998, the Industrial Tribunal, as mentioned above, passed the impugned Award against the Management holding that the termination of the workman''s service was illegal.
Assailing the findings recorded by the Tribunal in the impugned Award, Mr. Rajiv Ranjan, learned Counsel for the petitioner would argue that the Tribunal has committed a patent illegality in as much as, though it has held that the enquiry as conducted against the concerned workman was fair, proper and in accordance with the principles of natural justice, yet it has proceeded to discuss the entire evidences adduced before the Enquiry Officer and has recorded a finding totally different from the findings of the Enquiry Officer. Learned Counsel argues that this practice has been highly deprecated in several judgments of the Supreme court and in this context refers to a judgment of the Apex court in the case of The General Secretary, South Indian Cashew Factories Workers'' Union Vs. The Managing Director, Kerala State Cashew Development Corporation Ltd. and Others, . Learned Counsel refers also to a Division Bench judgment of this Court in the case of Management of M/s. Usha Breco Ltd. v. Presiding Officer, Labour Court, Jamshedpur and Ors. reported in 2005 LAB. I.C. 986 JHC.
From perusal of the impugned Award, I do find that after framing the preliminary issues regarding the fairness and propriety of the domestic enquiry, the Tribunal has recorded its finding that the domestic enquiry was held in a fair and proper manner and also in accordance with the principles of natural justice. Thereafter, the Tribunal proceeded to discuss the evidences on record, and thereby finding fault with the findings recorded by the Enquiry officer.
This, as rightly pointed out by the learned Counsel for the petitioner, could not have been indulged by the Tribunal, as has been held by the Supreme Court in the case of General Secretary, South Indian Cashew Factories Worker''s Union (Supra).
Even otherwise, from the observations recorded in the impugned Award, it appears that the specific charge against the workman was that he had indulged in acts of misconduct by committing fraud and acts of dishonesty, which is a misconduct in terms of Clause 19(2) of the Company''s Standing Orders. In proof of such charge, the Enquiry Officer has relied upon the documents, which the workman himself had produced. The findings recorded by the Enquiry officer on the basis of such evidence, which was not controverted by the workman in course of the enquiry, ought not to have been interfered with by the Tribunal by exceeding its jurisdiction.
In the light of the above facts and circumstances, I find merit in this writ application. Accordingly, the same is allowed. The impugned Award dated-23.01.2004 passed by the Presiding Officer, Central Government Industrial Tribunal No. 2, Dhanbad in Reference Case No. 105 of 1998 is hereby set aside.