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Judgment
This writ petition has been filed under Article 226 of the Constitution of India seeking a writ of certiorari for quashing the Award dated 20.06.2005 passed by learned Presiding Officer, Central Government, Industrial Tribunal No.2, Dhanbad in Reference Case No.67 of 1999 whereby the Award has been passed in favour of the workman with a direction to reinstate the concerned workman with 25% back wages from the date of dismissal i.e. from 01.11.1994.
The reference made to the concerned tribunal is quoted as under:
“Whether the action of the management of Bhelatand Colliery of M/s TISCO in dismissing Sh. Dharam Singh, Chainman, P. No.214574 of Project Section, Bhelatand under Clause 19 (5) of the Certified Standing order of the company vide dismissal order No.PROJ/AB/2090 dated 26th October, 1994 w.e.f. 1.11.1994 is justified? If not, to what relief is the workman entitled?”
3. It is not in dispute that the domestic inquiry conducted against the concerned workman with regard to charges levelled against him was found fair and proper, and therefore, the learned tribunal was to consider the matter in the light of Section 11A of Industrial Disputes Act.
Argument of the petitioner.
Learned counsel for the petitioner has submitted that inspite of the fact that the domestic enquiry was held to be fair and proper, the learned Industrial Tribunal has held that there was violation of principles of natural justice.
While referring to the manner in which the learned Industrial Tribunal has considered the materials collected during domestic inquiry, has submitted that the Industrial Tribunal has practically re-appreciated the materials on record and come to its finding.
It is submitted that the industrial tribunal does not sit in appeal to the findings recorded by the enquiry officer.
The industrial tribunal has exceeded its jurisdiction while passing the impugned award and therefore, the same is perverse and cannot be sustained in the eyes of law.
The learned counsel for the petitioner has referred to the findings of the learned industrial tribunal and submitted as under: -A. The Industrial Tribunal considered the issue and the documents on record and held that the termination was not proper & justified as the Management failed to prove the charges against the Respondent Workman beyond all reasonable doubt.
B. The Industrial Tribunal held that the Petitioner Management failed to examine independent witnesses present at the place of occurrence. The Tribunal held that the evidence of Mr. N.K.Gupta, who was present near the place of occurrence, did not support the allegation against the Workman.
C. The Industrial Tribunal was pleased to hold that the Order of dismissal issued by the Disciplinary authority was neither justified not proportionate to any offence committed by the Workman and the Management had failed to substantiate the charge against the Workman. Hence the Industrial Tribunal gave Award in favour of the concerned Workman by directing to reinstate the Workman in service and pay 25% back wages from the date of his dismissal (01.11.1994) to the date of his reinstatement with other consequential benefits.
While assailing the impugned award of the industrial tribunal, who has interfered with the findings of the domestic enquiry and also the order of punishment, the learned counsel for the petitioner has submitted as under: -
a. The Learned Tribunal had, vide Order dated 15.06.2004, decided the preliminary issue of fairness of departmental enquiry by holding that the departmental enquiry was fair and proper. Subsequently, vide the impugned Award, the Learned Tribunal has held that the Enquiry Officer had not followed the Principles of Natural Justice, and that the dismissal of the Workman from his service has violated all principles of natural justice. This finding of the Learned Tribunal amounts to a Review of its earlier Order dated 15.06.2004, vide which order the departmental enquiry had been held to be fair and proper. The Learned Tribunal has no such power of review, and hence the finding in the Award that the Principles of Natural Justice were not followed is bad in law.
b. The Learned Industrial Tribunal has posed wrong questions to itself and has thus come to a wrong conclusion in the instant matter.
c. The Learned Industrial Tribunal has recorded a finding that the Workman has to prove his innocence once charge against him is proved beyond any reasonable doubt, which is totally contrary to the settled principle of law that in a domestic enquiry, what is to be considered is the preponderance of probabilities and no strict rules of evidence as is mandated in criminal law is required.
d. The Learned Industrial Tribunal has wrongly and selectively interpreted the evidence of the eyewitness, Sri. N.K.Gupta, who disclosed that he had met the Workman shortly after the incident, and that he had a pistol in his hand.
e. The Learned Industrial Tribunal failed to appreciate that in case of a domestic enquiry, even hearsay evidence was admissible.
f. The Learned Industrial Tribunal completely failed to appreciate the statement of the Security Officer, Mr. Ajay Kumar, as he had not seen the incident dated 19.06.1994 is contrary to the law for domestic enquiries as laid down by the Hon'ble Supreme Court of India in a plethora of cases, wherein the Hon'ble Apex Court had been pleased to lay down the law that the strict and sophisticated rules of evidence under the Indian Evidence Act do not apply and that there is no allergy to hearsay evidence provided it has reasonable nexus and credibility.
g. The Learned Industrial Tribunal has totally failed to discuss the evidence of the male Nurse at the Feeder Hospital, Sri. Titus C. George.
h. The Learned Industrial Tribunal has totally failed to appreciate the contradiction in the statements of the delinquent Workman given in Reply to the chargesheet dated 04.07.1994 and during his evidence before the Enquiry Officer.
The Learned Industrial Tribunal has misconceived the jurisprudence of the evidentiary value of witnesses in domestic enquiry and has relied on strict rule of evidence as mandated in criminal proceedings which is not required before the Industrial Tribunal.
j. The Learned Industrial Tribunal has automatically granted 25% back wages to the Respondent Workman without giving any findings with regard to the same.
k. The Learned Industrial Tribunal failed to appreciate that the Hon'ble Apex Court had, in a number of Judgements, been pleased to hold and mandate that discipline was of paramount importance at the Workplace.
l. The learned counsel has also submitted that, in the domestic enquiry, there is no requirement to prove the case beyond all reasonable doubt, but the learned Industrial Tribunal has gone on to say that the management was required to prove the case beyond all reasonable doubts. He submits that such approach itself is contrary to the industrial jurisprudence.
Learned counsel has referred to following judgments: -
(2008) 5 SCC 554 [Usha Breco Mazdoor Sangh vs. Management of Usha Breco & Anr.] (Paragraph 33, 36, 38 & 39)
(1977) 2 SCC 491 [State of Haryana & Anr. vs. Rattan Singh] (Paragraph 4)
(2005) 3 SCC 241 [Cholan Roadways Ltd. vs. G. Thirugnanasambandam] (Paragraphs 15, 16, 19, 21, 25, 26, 34 and 35)
(2005) 3 SCC 254 [Divisional Controller, KSRTC (NWKRTC) vs. A.T.Mane] (Paragraphs 8, 9, 10 and 11)
(2005) 3 SCC 401 [M.P. Electricity Board vs. Jagdish Chandra Sharma] (Paragraphs 1, 7, 8 and 9)
(2005) 7 SCC 338 [V. Ramana vs. A.P.SRTC & Ors.] (Paragraphs 6, 7, 8, 9, 10, 11 and 12)
(2006) 1 SCC 430 [Hombe Gowda Educational Trust & Anr. vs. State of Karnatak & Ors.] (Paragraphs 3, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 29 and 30)
(2017) 4 SCC 507 [Central Industrial Security Force & Ors. vs. Abrar Ali] (Paragraphs 7 & 13)
Judgment Dated 25.11.2024 in W.P.(L) No. 7795 of 2012 [Sajda Kaneez, W/o Badre Alam vs. M/s TISCO Ltd.] (Paragraphs 28 & 29)
(2004) 4 L.L.N. 1066 [Management of M/s Usha Breco & Anr. Vs. Presiding Officer, Labour Court, Jamshedpur & Ors.]
(2005) 13 SCC 777 [Kapda Mazdoor Ekta Union vs. Birla Cotton Spinning & Weaving Mills Ltd. & Anr.]
Arguments of the respondent workman
The learned counsel for the respondent has opposed the prayer made in the writ petition and has made following submissions: -
The learned tribunal has rightly exercised jurisdiction vested under Section 11-A of the Industrial Disputes Act and after carefully appreciating oral and documentary evidence, has recorded categorical findings that the dismissal order passed against the concerned workman was unjustified and disproportionate.
The Learned Tribunal has categorically held that the management failed to substantiate the alleged misconduct against the workman. The tribunal specifically observed that :-
No F.I.R was lodged against the workman despite serious allegation of threat with revolver.
No written complaint was ever produced by the complainant officer.
In the present writ petition filed by the petitioner he itself has admitted that no pistol was seized from the concerned workman. It could not be established whether the pistol was real or toy pistol. No criminal case was initiated against the workman. Therefore, the very foundation of the allegation becomes doubtful and unreliable.
It is further submitted that despite making serious allegation of threating the Assistant colliery Manager with a firearm, the management neither lodged any F.I.R. nor produced any written complaint before the competent authority, which clearly demonstrates that the allegation was exaggerated and not supported by any cogent evidence. It is well settled law that serious charges involving criminal misconduct cannot be sustained merely on conjectures and assumptions without supporting evidence.
The Learned tribunal after proper appreciation of evidence has rightly held that the management failed to substantiate the charges against the concerned workman and therefore the order of dismissal was illegal and unjustified.
The Statement of management witnesses were contradictory. The management has also failed to examine independent witnesses who were admittedly present at the place of occurrence, which further weakens their cases. The contention of the management that dismissal of the workman was justified is wholly unsustainable in law and facts and has rightly been rejected by the Learned Tribunal.
That it has also been admitted that the workman never approached previously regarding his leave and the management has also failed to established that R.C. Singh was the competent leave- sanctioning authority and further failed to prove any written rejection of leave application. In absence of such proof, the allegation of unauthorized absence in unsustainable and the charge remains unproved.
The Learned Tribunal has rightly recorded that the enquiry officer failed to properly appreciate the defence taken by the workman and relied only upon inconsistent statements of management witnesses.
The enquiry proceeding was therefore not fair and proper, and was conducted in violation of the Principles of Natural Justice.
Hence the dismissal order based upon such defective enquiry cannot be sustained in the eye of law.
The Learned Tribunal has specifically recorded that the management failed to examine the eye-witness namely Durga Mahato. The only witness relied upon, N.K. Gupta, himself admitted that he was on leave on the relevant date. Also there were several other workers/miners present at the place of occurrence were not examined by the management.
Further, the security officer examined by the management was admittedly not an eyewitness to the alleged incident. Thus, management has miserably failed to prove the misconduct against the workman through reliable and cogent evidence.
That the findings recorded by the Learned Tribunal is that after considering all the statements of one witness which varied from the statement of other witnesses in very ugly manner and considering statement of all the witnesses there was sufficient reason to believe that R.C. Singh was not in good relation with the concerned workman, and for which, this way or that way his intention was to take revenge against workman.
That the finding recorded by the Learned Tribunal is pure findings of fact based upon appreciation of evidence and therefore cannot be interfered within writ jurisdiction unless perversity or jurisdictional error is demonstrated. No such perversity exists in the present case, and there is no illegality in the impugned award dated 20.06.2005, Hence the interference by this Hon'ble Court is unwarranted.
Therefore, the Learned Tribunal rightly exercised powers under section 11-A of the Industrial Disputes Act in granting reinstatement with partial back wages.
That it is settle principle of law that this Hon'ble Court cannot re-appreciate evidence in writ jurisdiction unless:-
Jurisdictional error exists Principal of natural justice is violated, and procedural lapse are there.
After going through the entire facts and under the circumstances it is apparent and crystal clear that none of the above grounds exist in the present case.
That the disciplinary authority has dismissed the respondent-workman merely on the basis of enquiry report without independent application of judicial mind and in most mechanical way.
The respondent workman namely Dharam Singh has already attained the age of superannuation on 29.10.18 during the pendency of the present writ petition. The Learned Tribunal had categorically held that the order of dismissal dated 26.10.94 w.e.f. 01.11.94 was not justified and consequently directed reinstatement with 25% back wages and consequential benefits.
During pendency of the writ petition the respondent-workman was only receiving subsistence payment of Rs.2,883.29 only per month under section 17-B of the industrial dispute act, which has also been discontinued after his retirement.
That the Award passed by the Learned Tribunal is well reasoned, legal and justified and does not call for any interference under Article 226/227 of the Constitution of India, further there is no illegality and perversity in the impugned award.
Learned counsel for the respondent has relied upon the judgment passed by Hon’ble Supreme Court reported in (2015) 5 SCC 423 [Radhey Shyam and Another vs. Chhabi Nath and Others] and has referred to paragraph 20, 21, 27 and 29 to submit that the writ petition has been filed in the present case under Article 226 of the Constitution of India which is not permissible. He has submitted that only the perversity in the award can be looked into and nothing more. He has also relied upon the judgment passed by this Court in W.P(L) 4845 of 2008 [The Management of Tata Engineering & Locomotive Company Ltd., Jamshedpur vs. Sumitra Devi and Others] and has referred to paragraphs 13, 14, 15 and 16 which refers to the scope of interference under Section 11 (A) of Industrial Disputes Act, once the inquiry is held to be fair and proper.
Learned counsel for the respondent has submitted that learned Industrial Tribunal has done the needful as permissible under law and there is no perversity in the impugned award and the award does not call for any interference.
I.A. No. 9384 of 2025
The learned counsel for the respondent has also referred to Interlocutory Application No. 9384 of 2025 and has referred to paragraph 6 of the said interlocutory application and has submitted that the petitioner has not made the payment of entire amount as per Section 17B of the Industrial Disputes Act, 1947 which was the condition imposed for stay vide order dated 31.07.2007 by this Court and in paragraph 8 of the interlocutory application it has been mentioned that the respondent has received only 25% wages during the pendency of this case and now the workman-respondent has retired from his service and he got only 25% of his wages during the period of service.
At this, the learned counsel for the petitioner-management has referred to the reply to the said interlocutory application and has drawn the attention of this Court to paragraph 8 and 9 and has submitted that admissible amount in terms of section 17B of the Industrial Disputes Act, 1947 has already been remitted to the account of the respondent and the respondent-workman has superannuated on 29.10.2018 and therefore, payment under Section 17(B) of the Industrial Disputes Act was discontinued with effect from 31.10.2018.
Scope of Section 11A of Industrial Disputes Act, 1947
Admittedly, the domestic enquiry was held to be fair and proper and thereafter the matter was examined under Section 11A of Industrial Disputes Act, 1947. Before proceeding to consider the case of the respective parties it would be important to consider the scope of Section 11A of Industrial Disputes Act, 1947. The scope of enquiry before this Court is as to whether the learned Industrial Tribunal has exercised its powers within the jurisdiction conferred under Section 11A of Industrial Disputes Act, 1947 or has exceeded its jurisdiction while setting aside the finding of the domestic enquiry and also the order of dismissal of the concerned workman.
The scope of inquiry with regard to Section 11A of Industrial Disputes Act, 1947 has been decided by the Hon’ble Supreme Court in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. Vs. Management and others reported in (1973)1 SCC 813 and has also been considered in the case of Amrit Vanaspati Co. Ltd. v. Khem Chand, (2006) 6 SCC 325 at paragraph 8 in the following words: -
“8.We are unable to countenance the submission made by the learned counsel for the respondent. This Court in a judgment in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. exhaustively referred to various decisions of this Court and gave a clear picture of the principles governing the jurisdiction of the Tribunals when adjudicating disputes relating to dismissal or discharge. Para 32 of the said judgment is reproduced here:
“32.From those decisions, the following principles broadly emerge:
(1)The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2)Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3)When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4)Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5)The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6)The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7)It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8)An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9)Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10)In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Panitole Tea Estate v. Workmen within the judicial decision of a Labour Court or Tribunal.” (emphasis supplied)
In the judgement passed by the Hon’ble Supreme Court reported in (2008) 5 SCC 554 (Usha Breco Mazdoor Sangh -vs- Management of Usha Breco Ltd. & Another) it has been held that-
- before a departmental proceeding, the standard of proof is not that the misconduct must be proved beyond all reasonable doubt but the standard of proof is as to whether the test of preponderance of probability has been met;
- when both the parties had adduced evidence, the Labour Court should have borne in mind that the onus of proof loses all its significance for all practical purpose;
-the Labour Court should not be based on mere hypothesis. It cannot overturn a decision of the management on ipse dixit. Its jurisdiction under Section 11-A of the Act although is a wide one, must be judiciously exercised.
Paragraphs 33, and 39 of the aforesaid judgement relevant for the present case are quoted as under: -
“33.Before a departmental proceeding, the standard of proof is not that the misconduct must be proved beyond all reasonable doubt but the standard of proof is as to whether the test of preponderance of probability has been met. The approach of the Labour Court appeared to be that the standard of proof on the management was very high. When both the parties had adduced evidence, the Labour Court should have borne in mind that the onus of proof loses all its significance for all practical purpose.
36.……………………….
38.………………………………
39.The upshot of our discussion is that the decision of the Labour Court should not be based on mere hypothesis. It cannot overturn a decision of the management on ipse dixit. Its jurisdiction under Section 11-A of the Act although is a wide one, must be judiciously exercised. Judicial discretion, it is trite, cannot be exercised either whimsically or capriciously. It may scrutinise and analyse the evidence but what is important is how it does so.”
In the judgement passed by the Hon’ble Supreme Court reported in (1977) 2 SCC 491 (State of Haryana -vs- Rattan Singh) it has been held that – -It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. -The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. -The simple point to be examined is whether there was some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. -Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record.
In the judgement passed by the Hon’ble Supreme Court reported in (2005) 3 SCC 241 (Cholan Roadways Ltd. -vs- G. Thirugnanasambandam) it has been held that – It is now a well-settled principle of law that the principles of the Evidence Act have no application in a domestic enquiry. The standard of proof required in a domestic enquiry has been considered at length in paragraphs 15 onwards of the report, whose following paragraphs which are relevant for the purposes of the present case are quoted as under: -
In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi (1991) 2 SCC 716, it was held:
“37.It is thus well-settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. … 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. Standard of proof cannot be put in a straitjacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries.”
19.It is further trite that the standard of proof required in a domestic enquiry vis-à-vis a criminal trial is absolutely different. Whereas in the former “preponderance of probability” would suffice; in the latter, “proof beyond all reasonable doubt” is imperative.
20.…………………………………
34.………………………. It is now well settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not germane for determining the issue, namely, that the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which is “preponderance of probability” and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out.
35.Errors of fact can also be a subject-matter of judicial review. ……………..”
In the judgement passed by the Hon’ble Supreme Court reported in (2005) 3 SCC 254 (Divisional Controller KSRTC (NWKRTC) -vs-A.T. Mane) , reliance has been placed in the earlier judgement in the case of State of Haryana v. Rattan Singh (1977) 2 SCC 491 and it has been held as follows: -
This Court in the case of State of Haryana v. Rattan Singh (1977) 2 SCC 491 which is also a case arising out of non-issuance of ticket by a conductor held thus:
“In a domestic enquiry all the strict and sophisticated rules of the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible, though departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. The essence of judicial approach is objectivity, exclusion of extraneous materials or considerations, and observance of rules of natural justice. Fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment, vitiate the conclusion reached, such a finding, even of a domestic tribunal, cannot be held to be good. The simple point in all these cases is, was there some evidence or was there no evidence — not in the sense of the technical rules governing court proceedings but in a fair common-sense way as men of understanding and worldly wisdom will accept. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny by court, while absence of any evidence in support of the finding is an error of law apparent on the record and the court can interfere with the finding.
In the present case, the evidence of the inspector is some evidence which has relevance to the charge and the courts below had misdirected themselves in insisting on the evidence of the ticketless passengers. Also, merely because their statements were not recorded, the order for termination cannot be invalid. In fact, the inspector tried to get their statements but the passengers declined. Further, it was not for the court but for the Tribunal to assess the evidence of the co-conductor.” (emphasis supplied)
From the above it is clear that once a domestic tribunal based on evidence comes to a particular conclusion, normally it is not open to the Appellate Tribunals and courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. In the present case, there is evidence of the inspector who checked the bus which establishes the misconduct of the respondent. The domestic tribunal accepted that evidence and found the respondent guilty. But the courts below misdirected themselves in insisting on the evidence of the ticketless passengers to reject the said finding which, in our opinion, as held by this Court in the case of Rattan Singh (1977) 2 SCC 491 is not a condition precedent. We may herein note that the judgment of this Court in Rattan Singh has since been followed by this Court in Devendra Swamy v. Karnataka SRTC (2002) 9 SCC 644.
Since the only ground on which the finding of the domestic tribunal has been set aside being the ground that the passengers concerned are not examined or their statements were not recorded, in spite of there being other material to establish the misconduct of the respondent, we are of the opinion, the courts below have erred in allowing the claim of the respondent. In our opinion, the ratio laid down in the above case of Rattan Singh (1977) 2 SCC 491 applies squarely to the facts of this case.
In the instant case also, there is the evidence of the inspector who conducted the checking which establishes the misconduct of the respondent based on which a finding was given that the respondent was guilty of the misconduct alleged. Based on the said finding, the disciplinary authority has punished the respondent by an order of dismissal. But the Labour Court and the learned Single Judge rejected the said finding and set aside the punishment imposed solely on the ground that the evidence of the passengers concerned was not adduced and their statements were not recorded by the inspector which as stated in Rattan Singh case (1977) 2 SCC 491 is not a condition precedent. Therefore, we are of the opinion that the courts below have erred in interfering with the finding of fact on an erroneous basis.”
On the point of scope of interference by the learned labour court and also on the point of quantum of punishment, reliance has been placed on the judgement passed by the Hon’ble Supreme Court reported in (2005) 3 SCC 401 (M.P. Electricity Board -vs- Jagdish Chandra Sharma).
“…………………… In U.P. SRTC v. Subhash Chandra Sharma (2000) 3 SCC 324, this Court, after referring to the scope of interference with punishment under Section 11-A of the Industrial Disputes Act, held that the Labour Court was not justified in interfering with the order of removal from service when the charge against the employee stood proved. It was also held that the jurisdiction vested with the Labour Court to interfere with punishment was not to be exercised capriciously and arbitrarily. It was necessary, in a case where the Labour Court finds the charge proved, for a conclusion to be arrived at that the punishment was shockingly disproportionate to the nature of the charge found proved, before it could interfere to reduce the punishment. In Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh (2004) 8 SCC 200, this Court after referring to the decision in State of Rajasthan v. B.K. Meena (1996) 6 SCC 417 also pointed out the difference between the approaches to be made in a criminal proceeding and a disciplinary proceeding. This Court also pointed out that when charges proved were grave, vis-à-vis the establishment, interference with punishment of dismissal could not be justified. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate (2005) 2 SCC 489, this Court again reiterated that the jurisdiction to interfere with the punishment should be exercised only when the punishment is shockingly disproportionate and that each case had to be decided on its facts. This Court also indicated that the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, had to act within the four corners thereof. It could not sit in appeal over the decision of the employer unless there existed a statutory provision in that behalf. The Tribunal or the Labour Court could not interfere with the quantum of punishment based on irrational or extraneous factors and certainly not on what it considers a compassionate ground. It is not necessary to multiply authorities on this question, since the matter has been dealt with in detail in a recent decision of this Court in Mahindra and Mahindra Ltd. v. N.B. Narawade (2005) 3 SCC 134. This Court summed up the position thus:
“20.It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment.”
It may also be noticed that in Orissa Cement Ltd. v. Adikanda Sahu (1960) 1 LLJ 518 (SC) and in New Shorrock Mills v. Maheshbhai T. Rao (1996) 6 SCC 590, this Court held that use of abusive language against a superior, justified punishment of dismissal. This Court stated “punishment of dismissal for using abusive language cannot be held to be disproportionate”. If that be the position regarding verbal assault, we think that the position regarding dismissal for physical assault, must be found all the more justifiable. Recently, in Muriadih Colliery BCC Ltd. v. Bihar Colliery Kamgar Union (2005) 3 SCC 331, this Court after referring to and quoting the relevant passages from Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh (2004) 8 SCC 200 and Tournamulla Estate v. Workmen (1973) 2 SCC 502 held:
“The courts below by condoning an act of physical violence have undermined the discipline in the organisation, hence, in the above factual backdrop, it can never be said that the Industrial Tribunal could have exercised its authority under Section 11-A of the Act to interfere with the punishment of dismissal.”
In (2005) 7 SCC 338 [V. Ramana v. A.P. SRTC and Others] it has been held that the scope of interference with quantum of punishment has been the subject-matter of various decisions of this Court. Such interference cannot be a routine matter; when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited; interference is not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken ; unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/Tribunal, there is no scope for interference. The judgement reported in (2006) 1 SCC 430 (Hombe Gowda Educational Trust v. State of Karnataka) has been relied by the learned counsel for the petitioner to submit that reappreciation of evidence placed during domestic enquiry is not permissible and that the jurisdiction to interfere with the quantum of punishment could be exercised only when, inter alia, it is found to be grossly disproportionate.
Paragraph 17 and 18 of the aforesaid judgement is quoted as under: -
The Tribunal's jurisdiction is akin to one under Section 11-A of the Industrial Disputes Act. While exercising such discretionary jurisdiction, no doubt it is open to the Tribunal to substitute one punishment by another; but it is also trite that the Tribunal exercises a limited jurisdiction in this behalf. The jurisdiction to interfere with the quantum of punishment could be exercised only when, inter alia, it is found to be grossly disproportionate.
This Court repeatedly has laid down the law that such interference at the hands of the Tribunal should be inter alia on arriving at a finding that no reasonable person could inflict such punishment. The Tribunal may furthermore exercise its jurisdiction when relevant facts are not taken into consideration by the management which would have direct bearing on the question of quantum of punishment.
The judgement reported in (2017) 4 SCC 507 (CISF v. Abrar Ali) has been relied by the learned counsel for the petitioner to submit that reappreciation of evidence placed during domestic enquiry is not permissible. In that case the evidence in domestic enquiry was reappreciated by the concerned High Court. Paragraph 13 of the aforesaid judgement is quoted as under: -
“13.Contrary to findings of the disciplinary authority, the High Court accepted the version of the respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the disciplinary authority that the unit had better medical facilities which could have been availed by the respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that reappreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India.”
The judgement relied upon by the learned counsel for the respondent -workman passed by the Hon’ble Supreme Court in the case of (2015) 5 SCC 423 [Radhey Shyam v. Chhabi Nath] does not apply to the facts of the present case. The said judgement deals with the scope of Article 226 and 227 of the Constitution of India with respect to the orders passed by the Civil Court arising out of proceedings governed by C.P.C. In the said judgement it has been held while answering the reference as under: -
“29.Accordingly, we answer the question referred as follows:
29.1.Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution.
29.2.Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.
29.3.Contrary view in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] is overruled.”
The present case is arising out of industrial dispute which was filed before the learned industrial tribunal challenging the order of dismissal passed in domestic enquiry and the impugned award is passed by the Industrial Tribunal.
It is not in dispute during the course of arguments that this Court under writ jurisdiction cannot re-appreciate the evidence and come to a different finding and further this Court cannot interfere with the impugned award unless it suffers from perversity / jurisdictional error/violation of principle of natural justice/procedural lapses.
In the judgement passed by this Court in W.P.(L) No. 4845 of 2008 (The Management of Tata Engineering & Locomotive Company Ltd., Jamshedpur -vs- Sumitra Devi) the scope of Section 11A of Industrial Disputes Act, 1947 has been duly discussed. The extract of the judgement relevant for the present case are quoted as under: -
“13.Having heard Ld. Counsel for the parties and after going through the records of the case and the impugned Award, it is pertinent to point out that the law is well settled, inasmuch as, even if the Industrial Tribunal or the Ld. Labour Court is of the view that the domestic inquiry was just and fair, yet this did not bar the Tribunal/Labour Court from considering as to whether the punishment was proportionate or not. The object and reason for inserting Section 11A was to incorporate the recommendations of the International Labour Organization (ILO) on the termination of employment. The ILO recommended that any aggrieved worker should be able to challenge termination before a neutral body such as an arbitrator, court, or tribunal. Before Section 11A was enacted, the role of Labour Courts and Tribunals was limited. The Supreme Court in Indian Iron and Steel Company Limited and Others vs. Their Workman (supra) held that such bodies could only interfere with dismissal or discharge if there was evidence of bad faith, victimization, or unfair labour practice, and not by substituting their own judgment for that of the Management.
…………………………………………………….
14.The pivotal case following the insertion of Section 11A is Workman vs. Firestone Tyre and Rubber Company, 1973 (1) SCC
813.The Supreme Court held that after Section 11A, the Industrial Adjudicator is not restricted to interfering with punishment only in limited circumstances. The Tribunal has the discretion to examine the proportionality of the punishment, mould the relief, and even award lesser punishment, if warranted. The Labour Court or Tribunal has a duty to assess whether the punishment is disproportionate to the charges proved. ………………..
15.In this regard, reference may also be made to the judgments of the Hon’ble Apex Court in the case of Mavji C. Lakum vs. Central Bank of India reported in (2008) 12 SCC 762 which has held as follows: -
“Para 23 - …………………The learned Judge seems to be of the opinion that if the inquiry is held to be fair and proper, then the Industrial Tribunal cannot go into the question of evidence or the quantum of punishment. We are afraid that that is not the correct law. Even if the inquiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed. That does not mean that the findings arrived at were essentially the correct findings. If the Industrial Tribunal comes to the conclusion that the findings could not be supported on the basis of the evidence given or further comes to the conclusion that the punishment given is shockingly disproportionate, the Industrial Tribunal would still be justified in re-appreciating the evidence and/or interfering with the quantum of punishment. There can be no dispute that power under Section 11-A has to be exercised judiciously and the interference is possible only when the Tribunal is not satisfied with the findings and further concludes that punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. Besides, the Tribunal has to give reasons as to why it is not satisfied either with the findings or with the quantum of punishment and that such reason should not be fanciful or whimsical but there should be good reasons.”
16.On the question of quantum of punishment, reference is also made to the case of Rama Kant Misra vs. State of Uttar Pradesh & Ors. reported in (1982) 3 SCC 346, wherein the Hon’ble Apex Court has held as under: -
“6.The punishment must be for misconduct. To some extent misconduct is a civil crime which is visited with civil and pecuniary consequences. In this case it has resulted in dismissal from service. In order to avoid the charge of vindictiveness, justice, equity and fair play demand that punishment must always be commensurate with the gravity of the offence charged. In the development of industrial relation norms we have moved far from the days when quantum of punishment was considered a managerial function with the courts having no power to substitute their own decision in place of that of the management. More often the courts found that while the misconduct is proved the punishment was disproportionately heavy. As the situation then stood, courts remained powerless and had to be passive sufferers incapable to curing the injustice. Parliament stepped in and enacted Section 11-A of the Industrial Disputes Act which reads as under…………………………….
7.It is now crystal clear that the labour court has the jurisdiction and power to substitute its measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. ………………………………………………………………… As stated earlier, it is a well-recognized principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty must be commensurate with the gravity of the offence charged.”
………………………………………………..
However, this Court also cannot be oblivious to the decision of the Apex Court in Mahindra & Mahindra vs. N.B. Narawade (2005) 3 SCC 134 laying down triple test for exercise of discretion under Section 11A of the Industrial Disputes Act, 1947. These are:-
(i)Punishment must be shockingly disproportionate to the gravity of the charges;
(ii)Existence of mitigating circumstances which require reduced punishment;
(iii)Past record of the workman. [Para 20].”
Keeping in mind the aforesaid judgements by which it has been, interalia, settled that: -
When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
the standard of proof required in a domestic enquiry vis-à-vis a criminal trial is absolutely different. Whereas in the former “preponderance of probability” would suffice; in the latter, “proof beyond all reasonable doubt” is imperative.
It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act.
The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice.
The simple point to be examined is whether there was some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny.
Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record.
Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
The considerations for interfering with the quantum of punishment are: -
Punishment must be shockingly disproportionate to the gravity of the charges; Existence of mitigating circumstances which require reduced punishment; Past record of the workman.
Findings of this court.
Charges against the concerned workman
So far as the allegation against the workman is concerned, a chargesheet was issued to him alleging serious misconduct during ‘C shift’ on 18.06.1994 at about 1.30 a.m. of 19.06.1994 under Clause 19 (5) of the certified standing order of the petitioner.
It was alleged that the workman went to Sijua colliery and found Sri. R.C. Singh, Assistant Colliery Manager, of that colliery standing on the surface at 15 pit top, went close to him and took a revolver in his hand and threatened him to kill. Sri. R.C. Singh was asked the question as to why he was not granting leave to the employees. However, R.C. Singh managed to escape and ran to the Security Department and informed them about the incident. However, when the Security Department reached the spot, the concerned workman fled away.
Reply of the concerned workman
Upon receipt of charge-sheet, the workman submitted his reply denying the occurrence and inter alia took the defense of alibi stating that he was on duty on 18.06.1994 from 8.30 a.m. to 1 p.m and he got loose motion and pain in his abdomen in the evening and that he had faith in Dr. M.P. Saha and went to his clinic and got himself admitted in the clinic and was under his treatment and was released on 19.06.1994 at 7 p.m. The papers of his clinic will show the truth and enclosed a certificate of the doctor. In his reply, it was stated that he had never worked under Sri R.C. Singh nor he had any quarrel with him and he was surprised as to why Sri R.C. Singh would raise any complaint against the concerned workman. It was also stated by the workman that at the instance of some enemy of the concerned workman, Sri R.C. Singh had lodged a false complaint against him.
The domestic enquiry
The enquiry officer was appointed and three witnesses were examined by the management, who were R.C. Singh, Assistant Colliery Manager, Sri Ajay Kumar, the Security Officer and N.K. Gupta, Assistant Manager. The concerned workman participated in the proceedings and cross-examined the witnesses and he also gave his own statement and evidence. In course of his statement, he stated that he was not feeling well because of loose motion and thereafter he went to Feeder hospital at about 6.45 p.m – 7 p.m. and got medicine from the hospital and then left for home. However, his condition deteriorated and his brother took him to the hospital of Dr. Saha.
The report of the inquiry officer has been placed on record. The findings of the inquiry officer are in the form of analysis of the materials. Ultimately, the workman was dismissed from service by the management. Admittedly, no criminal action was taken in connection with the alleged incident.
The proceedings before the tribunal
The findings of the learned tribunal commence from paragraph 5 of the impugned award, which records that the domestic enquiry was fair and proper and the said preliminary issue was decided in favour of the management vide order dated 15.06.2004. The order dated 15.06.2004 has not been placed on record, but it is not in dispute that inquiry was held to be fair and proper and in accordance with the principle of natural justice. However, the learned Industrial Tribunal has considered the case in the light of Section 11A of Industrial Disputes Act, 1947 and has set-aside the findings of the domestic enquiry and also the order of punishment and reinstated the concerned workman with 25% back wages.
For appreciating the rival contentions, the findings of the domestic enquiry and the learned Industrial Tribunal are placed in a table side by side as under:-
| Findings of domestic enquiry | Findings of tribunal |
| “Analysis: - from the above statements and evidences on record, the following have been revealed: 1). The charge levelled against Sri Dharam Singh is that on 18-6-94, he came to the Pit Top at 15 Pit Sijua with a revolver in his hand and put the barrel of the same on the chest of Sri RC Singh, Asst., Manager and threatened him. 2) From the management's side, three witnesses have been examined. Sri R.C.Singh, the complainant, has testified that it was Sri Dharam Singh who came to the Pit Top and put the revolver on his chest. He has also stated that the incident was witnessed by Sri N.K. Gupta, another Asst. Manager who happened to be present at the Pit Top at that point of time. Further, after having been threatened by Sri Dharam Singh, Sri R.C. Singh rushed to the Security Control Room and reported the matter to Sri Ajay Kumar, Officer (Security) who was present at the Security Control Room. 3) Sri N.K. Gupta, who was an eye witness of the incident, as named by Sri R.C. Singh, has | “I have carefully considered all the statement of witnesses, and after careful consideration of all the material evidence on record I find no hesitation to draw conclusion that the statement of one witness varies from the statement of other witness in a very ugly manner. Considering statement of all the witnesses there is sufficient reason to believe that R.C. Singh was not in good relation with the concerned workman and for which this way or that way his intention was to take revenge against him. No satisfactory explanation is forthcoming on the part of the management why R.C. Singh did not submit any written complaint. Why no F.I.R was lodged against the concerned workman particularly when there was allegation that at the relevant time of the alleged incident he was armed with deadly weapon. If FIR was lodged there chance of recovery of alleged revolver from the possession of the concerned workman. I have failed to under stand how without written complaint just on the basis of verbal report management issued chargeheet against the concerned workman which in absolutely illegal as because of the fact that the concerned workman was deprived of consulting the complaint made against him. Biasness of the management |
| corroborated the statement of Sri R.C.Singh that Sri Dharam Singh had come to the Pit Top with a revolver. His presence at the Pit Top with a revolver in his hand, was confirmed by Sri N.K. Gupta. 4) The 3rd witness from the management's side namely Sri Ajay Kumar Officer (Security) has also confirmed that Sri R.C. Singh had gone to him at the date and time indicated by Sri R.C.Singh and reported about the incident. 5) Sri Dharam Singh has, however, denied the charge. He has produced an alibi in the form of a certificate from a Private Nursing Home to the effect that he was admitted in the said Nursing Home from 8-00 p.m. of 18.6.94 to 7-00 pm of 19.6.94. He has also taken the stand that he had taken some medicines from the Bhelatand Feeder Hospital on 18.6.94 at 7-00 p.m. and that even after taking the medicines since he did not get any relief, he got himself admitted in a private Nursing Home. 6) However, the concerned staff of the Feeder Hospital namely Sri Titus C. George, who was present in the Hospital in the evening of 18.6.94, has stated that the medicines were given for the wife of Sri Dharam Singh and not for Sri Dharam Singh. His contention is supported by the entry in the Casualty Register. | appears to be very much evident considering the fact that R.C. Singh was an officer of the management. It is true that in reply to the charge-sheet the concerned workman took alibi in support of his plea of innocence. Onus on him to establish the alibi. However, question of establishing the defence comes in only when the charge brought against him is established beyond all reasonable doubt. Onus absolutely rests on the management to establish the charge against the concerned workman/delinquent. It is seen that with a view to establish the charge management have been able to examine one witness i.e. Mr. N. K. Gupta who according to them was the person on the spot at the time of the incident in question. Apart from evidence of N. K. Gupta management also examined one Security Officer Mr. Ajay Kumar whose evidence I have discussed in details above. He cannot be considered as an eye witness as because of the fact that he was not present on the spot at the relevant time of the incident. This witness also in course of his evidence admitted this fact. It is evident that not only Mr. N. K. Gupta but also many other persons were present on the spot at the time of the incident in question and according to the evidence of the witness 1 N. K. Gupta and R.C. Singh, they also witnessed the incident in question. It is clear that R. C. Singh, is the sole officer present on the spot at the time of incident. Therefore, before giving importance to his evidence it has to be looked into |
| 7) Furthermore, the contention of Sri Dharam Singh that after having taken the medicines for his ailment, he did not get any relief, and therefore, got himself admitted at a private Nursing Home at Chhatabad, cannot be accepted in view of the fact that specialised free medical treatment is available to all the employees at Feeder Hospital, Bhelatand and at Central Hospital, Jamadoba. Ambulance services are also made available on requisition to the employees in cases of serious ailment for transporting the patient-employees from the quarters to the Hospital. Since there are eye witnesses to the act of Sri Dharam Singh at the Pit Top on the night of 18.6.94 and due to the fact that free superior medical facilities are available in the company’s hospital, the certificate submitted by Sri Dharam Singh cannot given much reliance. It appears that in order to save himself, he is trying to put up an alibi. In view of the aforementioned facts and circumstances, the charge levelled against Sri Dharam Singh, as mentioned in the chargesheet, is established.” | whether the allegation made by him against the concerned workman/delinquent has got its support by Independent witness who were present at that time and saw the incident. It is really astonishing to note that inspite of getting ample scope management did not consider necessary to examine any independent witness with a view to corroborate the incident in question as alleged by R. C. Singh excepting the evidence of N.K. Gupta. I have carefully discussed the evidence of N.K. Gupta above and it has been exposed clearly that the allegation which Mr. R. C. Singh brought against the concerned workman/delinquent did not find its support from his evidence.” The learned tribunal further also held that the enquiry officer had not followed the principles of natural justice in the following manner: “The allegation which was brought against the concerned workmen vas very serious in nature and therefore close scrutiny was expected on the part of the enquiry officer before holding the concerned workman guilty to the charge. It is seen that the Enquiry Officer without scaning the evidence of the witness presented by the management was very much busy to discuss with the alibi taken by the concerned workman/delinquent. It reveals from his report how he found the concerned workman guilty to the charges as he failed to establish the allibi taken by him. The enquiry |
Officer has totally forgotten either or did not consider necessary to follow the principle of natural justice, question of believing or disbelieving the alibi only would come after establish of charge brought against the concerned workman/delinquent by the management. It is seen that the Enquiry Officer without scaning the evidence of management witnesses properly just relying on his finding relating to allibi taken by the concerned workman came to his conclusion that he was found guilty to the charges brought against him under clause 19(5) of the Certified Standing Order. In view of my discussion above I find no hesitation to say that the management have failed to substantiate the charge brought against the concerned workman. The concerned workman accordingly deserves benefit of doubt.
It is seen that management based on the enquiry report dismissed the concerned workman from his service. The order of dismissal during evidence of Enquiry Officer was marked as Ext.M.9. Now the point for consideration is whether the concerned workman deserves any relief U/S. 11 of the I.D. Act, Section 11 of the Act speaks as follows:-………………
Therefore, according to this provision it has to be looked into whether the said order of dismissal was justified or proportionate to the offence committed by the concerned workman/delinquent. It is really astonishing to note that the Disciplinary authority also did not apply their mind before imposing punishment upon the concerned workman. Just based on the report submitted by the Enquiry officer the Disciplinary Authority decided to dismiss him from his service. Dismissal of the concerned workman from his service based on the enquiry report I should say has violated all the principles of natural justice in view of my discussion above. I find no hesitation to say that such order of dismissal issued by the Disciplinary Authority vas neither justified nor proportionate to any offence committed by him. In view of my discussion above I hold management have failed to substantiate the charge against the concerned workman totally and knowing fully well of this fact they only for the prestige of an officer did not hesitate to dismiss as to the concerned workman from his service arbitrarily and illegally. Therefore, the said order of dismissal as is not justified or proportionate is liable to be set aside.
The enquiry report of the domestic enquiry records that R.C. Singh, the complainant, had supported the allegation against the concerned workman that the concerned workman had come to the pit top and put the revolver to his chest and that the incident was seen by N. K. Gupta, who was present at the relevant point of time. Further, that R.C. Singh rushed to Security Control Room immediately after the incident and reported the matter to Ajay Kumar, the Security Officer. The enquiry report also records that N.K. Gupta had corroborated the statement of R.C. Singh and stated that he had seen the concerned workman with a revolver in his hand at the place of occurrence. The enquiry report further records that the Security Officer, Ajay Kumar, also confirmed that R.C Singh had gone to him at the date and time and reported about the incident.
Thereafter, the enquiry report discusses the evidence of the concerned workman, who denied the charge and also took the plea of alibi by producing certificate from private nursing home to the effect that he was admitted in a nursing home from 8:00 PM on 18.06.1994 till 7:00 PM on 19.06.1994 and he had also taken a stand in his evidence that he had taken some medicine from the Feeder Hospital on 18.06.1994 at 7:00 PM and thereafter, since he did not get relief, he got himself admitted in a private hospital.
The enquiry report discusses the evidence of the concerned staff of the Feeder Hospital, who had present there in the evening of 18.06.1994 who stated that he had given medicine for the wife of the concerned workman and not for the concerned workman. His evidence was supported by entry in the register.
The Enquiry Officer, in addition to the evidence of the staff of feeder hospital, refused to accept the contention of the concerned workman that after taking medicine from feeder hospital and when he did not get any relief, he got himself admitted in private nursing home by observing that specialized free medical treatment is available at the feeder hospital and also at central hospital. Ambulance services are also available in case of serious ailments.
The enquiry report finally records the finding on merits of the charge by observing that since there are eye witness to the act of concerned workman at the pit top on the night of 18.06.1994 -19.06.1994 and plea of alibi taken by the concerned workman was not acceptable, held that charge leveled against the concerned workman was established.
Thus, as per the enquiry report what stood proved against the concerned workman was that he had threatened R.C. Singh, on the relevant date and time at the pit top with a revolver and for this R.C. Singh was examined as a witness, eye-witness N.K. Gupta was examined and the Security Officer was also examined. Further, the plea of alibi raised by the concerned workman was rejected.
Since the domestic enquiry was held to be fair and proper, the learned industrial tribunal in purported exercise of power under Section 11A of Industrial Disputes Act, 1947 recorded that the industrial tribunal had considered all the statement of the witnesses and concluded that the statement of one witness varied from the statement of another witness in a very ugly manner. Further recorded that considering the statement of all the witnesses there was sufficient reason to believe that R.C. Singh was not in good relation with the concerned workman and for which this way or that way his intention was to take revenge against him. This finding was recorded inspite of the fact that the concerned workman in his reply to show cause in the domestic enquiry had clearly taken a stand that he had never worked under R. C. Singh nor he had any quarrel with him and stated that it was at the instance of some enemies of the concerned workman, R. C. Singh had lodged a false complaint.
The finding of the learned industrial tribunal is that there was sufficient reason to believe that R.C. Singh was not got relation with the concerned workman is ex-facie perverse and is beyond the stand taken by the concerned workman in the domestic enquiry. This is apparent from the face of the record.
The learned industrial tribunal further recorded that there was no satisfactory explanation as to why R.C Singh did not submit any written complaint and as to why no First Information Report was lodged, although at the time of incident, the workman was alleged to have been armed with deadly weapon and had the FIR been lodged, the revolver could have been recovered. The learned industrial tribunal recorded that without there being any written complaint, issuance of charge-sheet was itself illegal as the concerned workman was deprived of consulting the complaint made against him.
Thus, the learned industrial tribunal has drawn adverse inference on account of absence of any written complaint by R.C. Singh and absence of FIR and termed such action as illegal on the ground that the concerned workman was deprived of consulting the complaint made against him. Such finding itself is ex-facie perverse in view of the fact that the charge-sheet itself narrated the entire incident with date, time and place of occurrence and R. C. Singh, who was the victim of the alleged action of the concerned workman, has himself been examined and cross examined in the domestic enquiry.
Learned industrial tribunal further recorded that the management was biased as R.C. Singh was an officer of the management. However, there is no such material to support such a finding and accordingly, the allegation of biasness against the management is itself perverse. Rather, the concerned workman never took any plea of biasness against the management even in his reply to the charge-sheet.
The learned industrial tribunal further recorded that since the plea alibi was taken by the concerned workman, the onus was upon him to establish the alibi. However, at the same time observed that the question of establishing defence would come only when the charge is established beyond all reasonable doubt. Thereafter, the learned industrial tribunal referred to the evidence of N.K. Gupta who claimed to be the eye witness to the occurrence and observed that N.K Gupta cannot be an eye witness to the occurrence as he was not present at the relevant time of the incident and N.K Gupta admitted this fact during his evidence. Further, observed that N.K Gupta and many other persons were present on the spot at the time of incident, but no independent witnesses were examined with a view to corroborate the incident accept the evidence of N.K. Gutpa. The learned industrial tribunal recorded that the allegation of R.C. Singh does not find support from the evidence of N.K. Gupta.
While discussing the evidence of N.K. Gupta, the learned tribunal recorded as under: -
“Considering the statement of N.K. Gupta it transpires that on the relevant date and time he was on leave. However, he was present on the spot with a view to line up job of his section and went to 15 Pit top between 1.15 to l.30 A.M. This witness disclosed that when he was talking with the miners he noticed the concerned workman to talk with R.C. Singh. Sometimes after, the said person came to him and shook his hand and asked him “SAHEB AAP MARE GHAR KHANA KHANE CHALEYA". This witness disclosed as the concerned workman was at that time in drunken state he helped him to move towards lamp cabin from pit top. At that time he found a Pistol with the concerned workman. He presumed the pistol as toy. This witness did not disclose in which part of the body of the concerned workman he found the pistol. When this witness disclosed that the delinquent shook hand with him in that case it was not possible on his part to possess the alleged pistal in his hand because of the fact that it is not possible on the part of a person to shake hand with, pistol in his hand..........................During cross examination N. K. Gupta firmly disclosed that he did not find the concerned workman to place revolver on the chest of R. C. Singh. He only found him to talk with R.C. Singh and a pistol was in his hand. He further admitted that while the concerned workman was talking with R.C. Singh his face was not covered with anything. Therefore, if the cross-examination of N.K. Gupta is taken into consideration it will expose clearly that he made an exaggerated statement to the security Officer Ajay Kumar after coming to control room.”
This Court finds that the learned industrial tribunal has recoded the findings that considering all the statement of witnesses and materials on record, the statement of one witness varied from the statement of other witness in a very ugly manner. This finding is preceded by discussion of the evidence of the witnesses in the enquiry proceeding and re-appreciating their evidence and coming to a different finding and also drawing adverse inference for not examining independent witness including one Durga Mahato, who was also alleged to be eye witness to the incident. While considering the evidence of N.K. Gupta as eye witness, which has been disbelieved by the learned industrial tribunal, the discussion of the tribunal reveals that the tribunal has re-appreciated the materials on record and come to a different finding. Such a course of action is not available to the tribunal in absence of any perversity in the findings of the domestic enquiry. The findings of the domestic enquiry have to be upheld even if it is found to base on some legally acceptable evidence. The tribunal cannot even go into sufficiency of evidence to interfere with the findings of the domestic enquiry by holding that one or the other person who could be a witness was not examined during domestic enquiry
Learned industrial tribunal has appreciated the oral evidences in its own manner and come to a different finding as if the learned industrial tribunal was sitting in appeal against the finding of the domestic enquiry. Such, a course of action was clearly impermissible considering, the scope of Section 11A of the Industrial Disputes Act, 1947.
The learned industrial tribunal further held that the enquiry officer had not followed the principles of natural justice while holding the concerned workman guilty of charge and that the question of believing or disbelieving the alibi only comes after establishing the charge. However, such finding itself is perverse in view of the fact that enquiry officer on the basis of evidences placed on record held that the concerned workman guilty of the charges levelled against him and at the same time rejected the plea of alibi as raised by the concerned workman.
The aforesaid finding of the learned tribunal that the enquiry officer did not follow the principles of natural justice is itself contrary to the fact that by earlier order the domestic inquiry was held to be fair and proper and in accordance with the principles of natural justice.
This Court finds that the enquiry report is well reasoned and based on appreciation of legal evidence placed on record, both oral and documentary including the consistent evidence of the victim who was threatened by the respondent workman. This Court finds that the learned tribunal has travelled beyond the scope of Section 11A of the Industrial Disputes Act, 1947 and has exceeded its jurisdiction by reappreciating the evidence and materials on record and coming to a different finding and also recording a finding that there was violation of principles of natural justice in the manner the enquiry officer had conducted the proceedings.
The learned Tribunal further misdirected itself to hold that workman was in inimical terms with the complainant and has also misdirected itself while holding that the management has to prove the case against the workman beyond all reasonable doubt. The law is well settled that in domestic enquiry the principles of “preponderance of probabilities” is applicable and the management is not required to prove the charges on the touch stone of “beyond all reasonable doubts”.
The law is well settled as discussed above that:-
When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
This Court finds that the findings in the domestic enquiry was neither perverse nor there is any material to even suggest that the management was guilty of victimisation, unfair labour practice or mala fide.
In view of the aforesaid facts and circumstances and the judgements which has been cited by the learned counsel for the petitioner, this Court is of the view that the learned Tribunal has misdirected and travelled beyond the scope of Section 11A of Industrial Dispute Act, 1947 and exceeded its jurisdiction by reappreciating the materials and coming to different findings ; wrongly held that the management was to prove the charges beyond all reasonable doubts; wrongly held that there was sufficient reason to believe that R.C. Singh was not in good relation with the concerned workman and for which this way or that way his intention was to take revenge against the concerned workman which was in direct conflict with the case of the workman as stated in his reply to the show cause and wrongly held that the management failed to prove the charges and the enquiry officer placed the onus upon the workman to prove his plea of alibi. Accordingly, the impugned award setting aside the findings of the enquiry report is perverse and beyond the permissible limit of appreciation of materials of domestic under Section 11A of Industrial Disputes Act, 1947 and hence calls for interference under writ jurisdiction of this Court.
So far as the quantum of punishment is concerned, the charges of threatening with revolver in work place is very serious and the punishment of dismissal can neither be said to be disproportionate to the charges proved in domestic enquiry much less shocking to the conscience of the court.
Consequently, the impugned award, interfering with the findings of the domestic enquiry and the order of punishment, is set aside.
This writ petition is accordingly allowed.
Pending interlocutory application being I.A. No. 9384 of 2025 is also disposed by observing that admissible amount under section 17B of Industrial Disputes Act, 1947 has been paid till retirement of the concerned workman.