Management of Hindustan Paper Corporation Ltd. vs The Presiding Officer

1.Heard Mr. S.N. Sarma, the learned Sr. counsel appearing for the petitioner.The learned counsel Mr. N. Dhar appears for the employee (respondent

No.2) in the WP(C) No.2151/2006. The learned counsel Ms. P. Chakraborty appears for other the two employees (respondent No.2) respectively, in

the WP(C) Nos.2150/2006 and 2152/2006.

These cases are inter-connected and the common challenge is to the analogous order dated 31.12.2005 (Annexure-G), of the Industrial Tribunal at

Silchar, whereby approval was refused to the termination of the workmen (respondent No.2) of the Cachar Paper Mill, Panchgram, operating under

the Hindustan Paper Corporation Ltd. (HPCL). The Management decided to discharge the workmen on the basis of the misconduct proved against

the delinquents and sought approval for their termination, from the Industrial adjudicator by offering the due wages under the proviso to Section 33(2)

(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as „the I.D. Act‟). However the learned Presiding Officer of the Tribunal refused

approval through elaborate examination of the evidence on record and surmising that the Management witnesses had failed to disclose prima facie

basis, to accord approval for the Management‟s decision.

The substance of the allegation against the three workmen Ranjan Roy, Nikanon Naiding and Biswajyoti Deb is that on 07.04.2002, these

employees who were posted at other Check Gates, at different locations, left their place of posting and came to the Lailapur Check Gate, at a

distance of 80 K.M. (approx), withoutany permission from the competent authority. At the Check Gate at Lailapur/Bhairabi on the Mizoram-Assam

Border, the employees in a clandestine manner, made unauthorized changes in the entry Registers of three bamboo suppliers of the paper mill and

made fresh entries incorporating new  particulars and prepared 3 new Registers, at the Lailapur Check Gate.

When the above manipulation of bamboo supply records at the Border Check Gate was detected, investigation was conducted by the Vigilance

Officer. The officer made enquiries and on 14.05.2002 (page-22), made his adverse conclusion. The relevant portion of the report is extracted here-in-

below for ready reference:- “……………………… WP(C) 1096/2010 Page 4 of 14 II) The below named officials posted at the place

mentioned against their name in clandestine way came to Lailapur Gate from their allotted place of posting & managed to record fake entries in the

suppliers registers maintained at Lailapur Check Gate Office. This reflects the malafide intention of the officials.

1) Shri Ashok Roy â€" Posted at Tripura-Taliamura, around 300 K.M. away from Lailapur.

2) Shri Ranjan Roy â€" Posted at Bhairabi around 80 K.M. away from Lailapur.

3) Shri Biswajyoti Deb â€" Posted at Bhairabi around 80 K.M. away from Lailapur.

4) Shri Joygopal Debnath â€" Posted at Phulartal around 80 K.M. away from Lailapur, although not recorded fake entries in the suppliers entry

register and not put any signatures in the registers but encouraged Sl. No.1, 2 & 3, in wrong doing. From scrutiny of the register entries of the supplier,

it is transparent that In-charge Mizoram Bamboo procurement works Shri A.K. Bakshi, DM (Forestry) had periodically inspected the registers by

putting his signature in the register as authenticity towards correctness of the entries. DM (Forestry) had failed to stop such illegal activities of the

staff posted under his control and also suppressed fact to higher-up. From the above it is concluded that the above officials including Vankal and

Naiding have abetted the suppliers for not bringing Mizoram bamboo through authorized Lailapur Forest Check Gate but to supply from elsewhere

(near distance of Mill). Had DM (Forestry) & above staff not encouraged suppliers, the supplier would not have dared to supply bamboo from its

designated source (Mizoram). They caused gain to supplier with malafide intention and are guilty for the same. …………………..â€​.

Because of the above vigilance conclusion, the charges were drawn up against the concerned employees on 21/24.06.2002 (Annexure-B) and they

were asked to respond to the allegations. 6. The charges against three employees being relevant, are extracted as under:-Â Against Ranjan Roy

“A. Sri Ranjan Roy, FS-II(SG), Code No.0437 whose place of posting was at Bhairabi (Mizoram) about 80 KM away from Lailapur vide OfficeÂ

order dated 03/05/02 left his place of work without any permission from the Competent Authority and visited Lailapur/Bairangtee Check gage office

on 07/04/02 and in a clandestine manner organized unauthorized change of original Register containing records of Bamboo supplier M/s Deep

Enterprise and made fresh entries in a new Register incorporating new  WP(C) 1096/2010  particulars on 07/04/02 suppressing the fact of such

destruction/ defacement of original records from the Competent Authority with malafide intention. Against the entry particulars of the aforesaid new

Register Sri Ranjan Roy obtained the signatures of S/Sri Biswajyoti Deb, N. Â Naidling and R. Vankal. Sri Ranjan Roy deliberately, omitted to put his

signature because he was aware of the unauthorized and illegal status of the changed Register. Sri Ranjan Roy (Place of his posting Bhairabi 80 KM

away from Lailapur) had also signed against unfilled columns in the Register maintained at Lailapur/Vairangtee gate office in respect of Bamboo

Supplier M/s H.S. Agency relating to the Entry particulars dated 12/04/02 in an unauthorized way and with a malafide intention. Also Shri Ranjan Roy

had signed against the entries dated 18/04/02 in the Register maintained at Lailapur/Vairangtee check gate office of HPC/CPM in respect of Bamboo

Supplier M/s H.S. Agency. Furthermore Sri Ranjan Roy had also recorded entries Sl. No.78 dated 18/04/02 to Sl. No.112 dated 20/04/02 in the

Register maintained at Lailapur/Vairangtee Check Gate at Bhairabi 80 KM away from Lailapur/Vairangtee. The aforesaid unauthorized acts of Sri

Ranjan Roy was with an ulterior motive and with a clear intention of  illegally benefiting the Bamboo suppliers and causing loss to the Corporation in

connivance with the Bamboo suppliers and HPC Officials discussed above. Sri Ranjan Roy, FS-II(SG), Code No.0437 has thereby failed to maintain

absolute integrity and devotion in his duty. Sri Ranjan Roy acted in a manner prejudicial to the interest of the Corporation. Shri Ranjan Roy is therefore

allegedly guilty for committing the following misconducts under Standing Order applicable to him.

Defacement or destruction of official document -28(4)

Fraud and dishonesty -28(6)

Suppression of facts -28(9)

Unauthorized absence from place of posting -28(22)

Wilful damage or loss to the Corporation -28(25)

Commission of any act subversive of discipline and good -28(52) behaviour or acting in a manner prejudicial to the interest of the Corporation “

Against N. Naiding “B. You in a clandestine manner and in  connivance with some HPC employees and the Bamboo suppliers organized

unauthorized change of 03(three) Nos. of original Entry Registers containing records of 03(three) Bamboo suppliers namely 1. M/s J.M. Saha, 2. M/s

Deep Enterprise and 3. M/s J. Bothra and also managed to make fresh entries in 03(three) new Registers incorporating new particulars on 07.04.2002

at Lailapur/ WP(C) 1096/2010 Â Vairangtee Check Gate office of HPC/CPM suppressing the fact of such change of original records from the

Competent Authority with a malafide intention of illegally benefiting the Bamboo suppliers and causing loss  to the Corporation. Your aforesaid acts

amount to gross misconduct under the Standing Orders Nos. noted below :-

Willful defacement or destruction of official document -28(4)

Fraud and dishonesty -28(6)

Suppression of facts -28(9)

Wilful acts causing damage or loss to the Corporation -28(25)

Abetment -28(46)

Commission of any act subversive of discipline and good -28(52) behaviour or acting in a manner prejudicial to the interest of the Corporation.“

Against Biswajyoti Deb “C. Sri Biswajyoti Deb, Forest Supervisor(SG)-II, Code No.0436 whose place of posting was at Bhairabi (Mizoram) about

80 KM away from Lailapur vide Office order dated 03/05/02 left his place of work without any permission from the Competent Authority and visited

Lailapur/Bairangtee Check gage office on 07/04/02 and in a clandestine manner organized unauthorized change of original Register containing records

of Bamboo supplier M/s J.M. Saha and M/s Deep Enterprise in connivance with Sri Ashok Kr. Roy, Sri Ranjan Roy, Sri R. Venkal and Sri N. Naiding

on 07.04.02 suppressing the fact of such defacement of original records with a malafide intention of illegally benefiting the Bamboo suppliers. Shri

Biswajyoti Deb had also signed against unfilled entry columns in the Register maintained at Lailapur/Vairangtee Check Gate office in  respect of

Bamboo Supplier M/s H.S. Agency at Lailapur/Vairangtee Check Gate Office relating to the Entry particulars dated 12/04/02 in an unauthorized way

and with a malafide intention. Also Shri Biswajyoti Deb had signed against the entries dated 18/04/02 in the Register maintained at

Lailapur/Vairangtee check gate office of HPC, CPM in respect of Bamboo Supplier M/s H.S. Agency. All the above acts Sri Biswajyoti Deb had

committed in connivance with the Bamboo suppliers and HPC officials discussed above in a clear intention of illegally benefiting the Bamboo

supplier(s) and causing loss to the Corporation. Sri Biswajyoti Deb, has thereby failed to maintain absolute integrity and devotion in his duty. Shri

Biswajyoti Deb acted in a manner prejudicial to the interest of the Corporation. Shri Biswajyoti Deb is therefore allegedly  WP(C) 1096/2010 guilty

for committing the following misconducts under Standing Order applicable to him.

Willful defacement or destruction of official document -28(4) 2. Fraud and dishonesty -28(6)

Suppression of facts -28(9)

Absence from the place of work without permission and -28(22) without sufficient cause

Willful acts causing damage or loss to the Corporation -28(25)

Commission of any act subversive of discipline and good -28(52) behaviour or acting in a manner prejudicial to the interestof the Corporation “

In their response(s) the employees claimed that they acted under instruction of their supervisory officer (A.K. Bakshi) and reported at the

Lailapur/Bhairabi Check Gate and changed the entries in the Registers for the concerned bamboo suppliers and also kept blank, certain columns in the

new Registers, where new entries were made. As they acted on instruction of their controlling officer, the employees sought exoneration from the

charges.

Those explanation was found to be unsatisfactory and accordingly Mr. D.B. Majumdar, the Manager (Commercial), was appointed as the Inquiry

Officer. The employees participated in the proceedings and were afforded due opportunity. The exhibited documents and evidence of the two

prosecution witnesses wasconsidered by the Inquiry Officer. The charge of unauthorizedly leaving the place of work, to visit the Lailapur Check Gate

and altering the entries for the Bamboo supplies in the new Registers and destruction/defacement of the original Registers, were found proved in the

domestic inquiry.

The Inquiry Report was then furnished and even on this occasion, the delinquents took the plea that they acted on verbal instruction of their

controlling officer.

The Disciplinary Authority then considered the materials on record and decided that the penalty of removal from service, under Clause 29(h) of

the Standing Orders, be inflicted. Since the related Industrial Dispute was pending in the Silchar Tribunal, the Management offered one month‟s wage

to the workmen and applied for approval for the termination decision, under Section 33(2)(b) of the I.D. Act. WP(C) 1096/2010 Page 8 of 14

The Management‟s approval application(s) were registered respectively as the Misc. Case Nos.3, 4 & 5/2003, in the Industrial Tribunal, Silchar.

Initially on 25.10.2005, the Tribunal after noticing certain infirmities in the Inquiry Report, declined the approval. The Management was however

allowed to lead evidence and during the remanded process, two prosecution witnesses and documents were produced to justify the removal. The

witnesses were cross-examined by the delinquents but they declined to adduce any defence evidence of their own.

When the approval plea was next considered, under Section 33(2)(b) of the I.D. Act, the facts of manipulation of the Registers and fraudulent

recording of entries were found to be proved. However because of the non-availability of the original entry Registers (destroyed), the fact of making

false entries in the new Registers were described as slip of pen, without any intention to cause financial loss to the HPCL. On this basis the approval

was not granted.

13.1 Assailing the legality of the impugned decision, the learned Sr. counsel Mr. S.N. Sarma submits that when Section 33(2)(b) applications are

considered by the Court, the Tribunal has to reach the appropriate conclusion by ruling out victimisation or unfair labour practice by the Management

and the first endeavour of the Industrial Court must be to determine whether the domestic enquiry is valid on the touchstone  of principles of natural

justice. If this is satisfied, the jurisdiction of the Tribunal would be limited to examine the prima facie case for according approval. Moreover even if

such approval is granted for the penalty, the remedy under the I.D. Act would still be available, to the concerned employees.

13.2 The learned lawyer for the Management next contends that the Industrial Tribunal misdirected itself in going beyond the limited jurisdiction under

Section 33 of the I.D. Act and in fact the impugned findings are nothing but perverse finding, as the unauthorised entries recorded in the concerned

registers were described as slip of pen.

13.3 As the learned Tribunal unnecessarily took into account that no financial loss has been caused to the Corporation by the delinquent employees

and this was made the basis for rejecting the Section 33 applications, the Sr. counsel Mr. S.N. Sarma submits that for disciplinary action, misconduct

itself is sufficient and resultant financial loss to the employer is not a mandatory condition, for imposing penalty. Â WP(C) 1096/2010 Page 9 of 14

13.4 Since none of the delinquents had seriously contested the charge and had pleaded for exoneration by taking the plea that they committed the acts

alleged against them, on instruction of their Controlling  Officer (Mr. A.K. Bakshi), the Sr. counsel submits that this is practically a case of

admission, without any serious challenge to the charges of misconduct.

14.1 On the other hand, Mr. N. Dhar, the learned counsel for the delinquent in the WP(C) No.2151/2006 contends that penalty is proposed on his

client without a formal charge-sheet and accordingly the counsel questions the finding dated 30.04.2003 (Annexure-D) of the Enquiry Officer to the

effect that the charges have been proved and established, against the delinquent.

14.2 According to Mr. Dhar, the impugned decision is not liable to be interfered by the writ court since such verdicts can be challenged, only on the

ground of perversity.

15.1 Representing the two employees in the WP(C) No.2150 and WP(C) No.2152/2006, Ms. P. Chakraborty, the learned counsel focuses her

arguments on the fact that the delinquents were dictated by their Controlling Officer to reach the Lailapur Check Gate and to make the fresh entries

and accordingly she submits that the binding circumstances through the dictates of the superior officer, should have been taken into account, by the

disciplinary authority.

15.2 The learned counsel points out that similar penalisation for another delinquent Joygopal Debnath although was approved by the High Court in the

WP(C) No.3081/2005 and it was upheld by the Division Bench, the entire matter is now pending in the Supreme Court and accordingly Ms.

Chakraborty submits that the concerned issues are yet to be conclusively determined, by the highest court.

The submission made by the learned counsel for the parties have been earnestly considered and I have also examined the materials on record.

The key feature of the defence plea in all these cases is that the delinquents had acted as per the verbal instruction of their controlling officer. But

can this be a reasonable explanation as the concerned employees were posted at distant check gates and had left their place of duty to arrive at the

Lailapur check gate for the purpose of destroying the original entries in the concerned registers and replacing them with fresh Registers with

fraudulent entries, to benefit certain  WP(C) 1096/2010  suppliers of bamboo to the paper mill. The charges were practically admitted and this is

specifically recorded by the Enquiry Officer who conducted the enquiry against the delinquent Nikanon Naiding, who is connected with the WP(C)

No.2151/2006.

It is relevant also to note that one R. Vankal was posted as the In-Charge of the Lailapur check gate. In the context of the visit of the Officer

(A.K. Bakshi) and other staff posted at different check gates, R. Vankal mentioned that Ranjan Roy and Biswajyoti Deb are posted at Bhairabi and

Ashok Roy is posted at Taliamura and Joy Gopal Debnath is posted at the Manipur check gates of the Paper Mills and all these staff had visited the

Lailapur check gate on 07.04.2002 and made changes to the entries of 3 bamboo suppliers.

However notwithstanding the manipulation and fraudulent change of entries in the concerned registers at the Lailapur check gate, by employees

who were posted elsewhere in other States, the learned Tribunal inexplicably described the change of entries, as act of slip of pen only because,

financial loss was not caused to the HPC. Moreover adverse conclusion was drawn for non-production of the old registers by disregarding the fact

that the old registers were destroyed, in order to make fraudulent entries to benefit the bamboo suppliers, in the new registers.

On the basis of such purported infirmities, the learned Tribunal refused to accord approval for discharge of the employees sought under Section

33(2)(b) of the I.D. Act. But in the process, the learned Presiding Officer totally overlooked the limited role of the industrial adjudicator in such

matters.

This Court had the occasion to examine the scope and ambit of power of the Tribunal, under Section 33(2)(b) in the case of Indian Oil Corporation

Ltd. Vs. Presiding Officer reported in 2005(4) GLT 635 and we can benefit here by the Court‟s ratio in the following two paragraphs of the

judgment:- “…………………… 6. Section 33 of the Act contemplates prior permission or approval, as the case maybe, in respect of a

disciplinary measure that an employer seeks to or has imposed on a delinquent workman. The object behind the enactment of Section 33 has always

been understood to-be to ensure that there is no victimization or unfair labour practice in respect of a workman against whom disciplinary action is

sought to be taken or has been imposed, in a situation where there is already an industrial  WP(C) 1096/2010  dispute pending, involving such a

workman. It is in keeping with the object behind Section 33 that the scope, sweep and extent of the powers of the Industrial Courtunder Section 33

must be understood. Punishment proposed or imposed in respect of which prior permission or approval, as may be, has been sought, may or may not

be preceded by a domestic enquiry. On the ratio of the law laid  down by the Apex Court in Lord Krishna Textile Mills (supra) and Lala Ram

(supra), relied upon by the learned counsel for the petitioner, the first endeavour of the Industrial Court must be to find out whether the domestic

enquiry held is valid on the touchstone of the principles of natural justice. If the domestic enquiry held against the respondent workman is found to be

valid, the jurisdiction of the Industrial Court under Section 33(2)(b) would be limited to seeing whether a prima facie case for according approval has

been made out or not and in proceeding in the matter the Industrial Court may consider:

(a) ""Whether the standing orders justify the order of dismissal,

(b) Whether an enquiry has been held as provided by the standing order,

(c) Whether the wages for the month have been paid as required by the proviso, and (d) Whether an application has been made as prescribed by the

proviso."" [Lord Krishna Textile Mills Vs. Its Workmen reported in AIR 1961 SC 860] To the above areas of examination another significant and

permissible area of adjudication would be to see whether the punishment imposed is byway of victimization or unfair labour practice. The

determination to be made by the Industrial Court under Section 33(2)(b) in a situation where the domestic enquiry has been found to be valid will

naturally have to be on the basis of the records of the domestic enquiry. If, however, a domestic enquiry has not been held or if held is found to be

invalid, the Industrial Court will have to allow evidence of the contesting parties to be adduced before it and it is only on an appraisal of such evidence

that the question as to whether approval should be granted or not under Section 33(2)(b) has to be reached. Though in the second situation, the

jurisdiction of the Industrial Court under Section 33(2)(b) may, at first blush, appear to be broader than in the first, in reality there is no fundamental

difference in the scope and extent of the power to be exercised as in both the situations. The ultimate conclusion of the Industrial Court under Section

33(2)(b) has to be reached from the stand point of whether there has been any victimization or unfair labour practice in the disciplinary measure that

has been imposed by the employer. The justification of the punishment imposed must be necessarily tested by the Industrial Court under Section 33(2)

(b) from the above stand-point as any other view may have the effect of impairing a possible adjudication under Section 10 of the Act, recourse to

which would still be available to the concerned workman even in a case where approval has been granted under Section 33(2)(b).

The distinction noted above is fine and in some cases the dividing line may appear to be thin. The question of victimization or unfair labour practice

being adopted may in a given case be inextricably linked up with the question of  WP(C) 1096/2010  justification of the punishment and in such

cases the dividing the between the limited power of the Industrial Court under Section 33(2)(b) and the broader power under Section 10 may get

obliterated. However, what must be emphasized is that the distinction is real and discernible and therefore must be maintained and the task of

identification of the distinction or the dividing line must be left to the discretion of the Industrial adjudicator to be exercised after due and proper

application of judicial mind. What must be emphasized is that care must be taken not to render the provisions of Section 10 nugatory. ......................â€​

What is important to note here is that the learned Tribunal in refusing to accord approval to the punishment, did not record any finding that the

punishment was by way of victimization or unfair labour practice. In fact fault was found on the quality of the evidence forgetting altogether that the

decision of the Management to penalize the delinquents, was preceded  by a due process of showcause and a domestic enquiry. In a situation where

the employees had participated in the proceeding and were afforded due opportunity to defend the charge, the penalization approval should have been

decided within the permissible arena of jurisdiction under Section 33(2)(b) of the I.D. Act. But no attempt was made by the Tribunal to determine

whether the delinquents were being victimized or subjected to unfair labour practice. Most importantly, despite adequate evidence for the prima facie

satisfaction, the learned Tribunal rendered a perverse verdict, by disregarding the relevant materials.

In so far as the specific argument of Mr. Dhar that his client (Nikanon Naiding) is being penalized without issuing the formal charge-sheet and

simply on the basis of a show-cause notice, we can answer this question by referring to the ratio in Krishna Chandra Tandon Vs. Union of India

reported in (1974)4 SCC 374. Here the concerned delinquent was issued the show-cause notice on 21.06.2002 (Annexure-B), which described

without any ambiguity, the misconduct alleged against the workman. Clear reference was made to willful defacement or destruction of official

documents, fraud and dishonesty, suppression of facts, abatement, acts subversive of discipline and good behaviour. Moreover which specific clause

of Standing Orders have been violated, were also indicated in the said show-cause notice issued to Nikanon Naiding. The response of the delinquent

furnished on 15.07.2002 indicates that he had no difficulty in understanding the charge and in fact his response was shown to be the written statement

of  WP(C) 1096/2010  defence, against the memorandum of charge. Thus the delinquent harboured no confusion on the nature of the charge and

in fact formally responded to the showcause notice issued against him, leading to the departmental proceeding. In Krishna Chandra Tandon (supra),

the Supreme Court categorically stated that there is no magic in the word charge-sheet and therefore I am of the considered opinion that in the

absence of any prejudice being caused to the delinquent, no advantage can be gained by him merely because, formal statement of allegations were not

furnished in the concerned proceeding.

On the issue of the charge-sheet it will be also be appropriate to note that the charge-sheet need not contain the details of the documents or the

names of the witnesses proposed to be examined to prove the charge or a list to that effect unless, there is a specific requirement under the Rules. In

fact a charge-sheet is not expected to be a record of evidence and what is required to be ensured is to provide a fair opportunity to the delinquent, to

defend the charges. In these cases adequate compliance of the legal requirement is seen.

In view of the foregoing discussion, this Court has no hesitation to declare that the refusal by the Industrial Tribunal to accord approval to the

removal of the workmen from service was unjustified. In such circumstances, this Court has the option to remit back the matter for according the

approval as sought by the Management. But considering the long duration of the litigation and also the ratio in Cholan Roadways Ltd. Vs. G.

Thirugnanasambandam reported in (2005)3 SCC 241 and our own Court‟s verdict in the General Manager, Hindustan Paper Corporation Ltd. Vs.

Presiding Officer, Industrial Tribunal reported in 2006 (Suppl.) 1 GLT 420 and the conclusion drawn, approval is found to be merited to the

Management‟s decision. Therefore this Court accords the approval to the order of punishment. However, the employees are at liberty, to take

recourse to any other remedial measure under the I.D. Act.

Before parting with the records, it would be appropriate to note the fact that the respondent No.2 Ranjan Roy in the WP(C) No.2150/2006 has

died during the pendency of this case, but since this Court allowed the application of the Management, the death of the litigant will have no bearing on

the Court‟s WP(C) 1096/2 conclusion. But if the legal heirs are interested to pursue this matter further, they are at liberty to do so.

With the above order, the three cases are allowed in the manner indicated without any order on cost.