SRI SHIV NATH PRASAD GUPTA vs THE MANAGEMENT OF HOLLONGHABI TEA ESTATE

1.Heard Mr. K.M. Mahanta, the learned Counsel appearing for the petitioner/workman. The respondent No.1/management is represented by Ms. M.

Hazarika, the learned Senior Counsel.

The challenge here is to the Award dated 30.12.2009 (Annexure-17) in the Reference Case No.3/2006 whereby, the learned Labour Court,

Dibrugarh has answered the reference in favour of the management and declared that the dismissal of the workman, is justified and his claim for re-

instatement is not tenable.

RELEVANT FACTS

Before joining service the petitioner secured the registration on 7.12.1987 as a Rural Medical Practitioner (RMP) from Bihar. He was then

temporarily appointed as Health Officer on 1.8.1989 at the Tokowani Branch of the Hollonghabi Tea Estate and subsequently he was adjusted in the

Medical Grade-II in the same Tea Estate, on monthly salary of Rs.1731.60.

On 9.6.2001 (Annexure-4) the management of the Hollonghabi Tea Estate issued notice to the petitioner and other medical staff, to furnish copies

of their testimonials. The charge against the petitioner is that he did not comply with the direction of the management to produce the required Medical

Certificate on or before 13.6.2001. Such defiance of the petitioner was treated to be willful insubordination and misconduct under Clause 10(a)(1) of

the General Standing Order. On such charge, the employee was dismissed from service w.e.f. 22.9.2004.

Aggrieved by the dismissal order, the petitioner made a complaint to the Asstt. Labour Commissioner on 20.9.2005 and requested for his

intervention in the matter. Then conciliation was attempted under Section 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as “the

I.A. actâ€) by the Labour Officer, Tinsukia. But the conciliation effort ended in failure on 3.1.2006 after which, the Government of Assam on

1.4.2006 made the reference under Section 10 of the I.D. Act, for adjudication of the following two issues relating to the dismissal of the workman

â€

“1. Whether the management of Hollonghabi Tea Estate is justified in dismissing Shri S.P. Gupta, Resident Health Officer, Tokowani division w.e.f

22/09/2004?

If not, whether the management of Hollonghabi Tea Estate is liable to reinstate Shri S.P. Gupta with full back wages or any other relief in lieu

thereof ?â€​

In the Reference Case No. 3/2006 before the Labour Court, Dibrugarh, the Management and the workman filed their Written Statement (WS) and

additional W.S. The case projected by the Management was that the workman, who had secured the Rural Medical Practitioners licence, failed to

furnish any renewal thereof after 1995. Moreover only after the petitioner’s appointment, the Management learnt that Rural Medical Practitioner

is neither a Medical Degree nor a Medical Diploma and therefore the petitioner’s appointment and continuance as a medical staff, was questioned

on 1.6.2001 by the Medical Inspector of the Plantations. The failure of the petitioner to produce his updated Rural Medical Practitioner certificate was

construed to be misconduct and accordingly the charge-sheet was issued to him but he failed to participate in the enquiry. Eventually, the ex parte

inquiry was conducted in presence of neutral observers and the punishment of dismissal from service was issued for the misconduct, found to have

been established by the Inquiry Officer.

On the other hand, the workman’s case in the industrial court was that although, he was appointed as Health Officer in the Tokowani division

of the Hollonghabi Tea Estate, he was paid the salary of a pharmacist (Medical Grade-II) and was denied the facilities, befitting the Health Officer.

He denied the charges and made the counter allegation of unfair labour practice and questioned the legitimacy of the guilty finding, in the ex parte

departmental inquiry.

Before the Labour Court, the Management produced two witnesses whereas the workman examined himself as the Defence Witness. On the basis

of the testimony of witnesses and the materials on record, the Labour Court found that the petitioner failed to submit the required documents and only

on 24.9.2004 (Exbt.-14) the management’s direction was carried out, two days after dismissal of the petitioner on 22.9.2004. The adverse

conclusion was thus drawn that the workman failed to comply with the direction of the Management to submit his testimonials within the stipulated

time frame. This was construed to be an act of willful insubordination and disobedience amounting to misconduct, under Clause 10(a)(i) of the

Standing Order. With this conclusion, the reference was answered against the workman by declaring that the management is justified in dismissing the

petitioner w.e.f. 22.9.2004 and that he is disentitled to reinstatement or any other relief.

PETITIONER’S ARGUMENT

9.1 Assailing the legality of the Award dated 30.12.2009 (Annexure-17), the petitioner first argues that he was appointed as a Health Officer in the

Tokowani Division of the Hollonghabi Tea Estate and therefore, he is not a workman within the meaning of the I.D. Act and on that basis, the Award

of the Labour Court is challenged by the litigant.

9.2 The learned Counsel Mr. K.M. Mahanta submits that the petitioner is a professionally qualified person and was appointed as Health Officer in the

Tea Estate and therefore, he is not covered within the definition of workman under Section 2(s)(s) of the I.D. Act and on that basis, the entire

proceeding before the Labour Court, is contended to be vitiated.

MANAGEMENTS ARGUMENTS

10.1 On the other hand, Ms. M. Hazarika, the learned Senior Counsel submits that industrial reference was drawn up at the instance of the petitioner

and he never questioned his status as workman of the Tea State and on this basis, the acceptability of the fresh ground, raised for the first time before

the Writ Court, is questioned by the senior Counsel.

10.2 She further submits that the petitioner does not have a Medical Degree and his qualification as a Rural Medical Practitioner does not entitle him

to be appointed as a Doctor and in fact, it is specifically argued that the petitioner was posted as a medical staff Grade-II and hence the nomenclature

of the appointment, would be irrelevant.

10.3 The management’s counsel argues that the petitioner cannot turn around and take a different stand in the Writ Court since all along, he had

described himself as a workman and the reference under Section 10 of the I.D. act was drawn up on the dismissal issue, at the instance of the

workman himself.

DISCUSSION AND DECISION

The definition of workman in the I.D. Act would include even the skilled employees and only those who are employed in managerial or

administrative capacity, are excluded under Section 2(s) of the I.D. Act. While the appointment letter for the petitioner described him as Health

Officer, admittedly he was employed as a Medical Grade-II staff with the pay scale of pharmacist and in fact, this was one of the bone of contention

between the workman and the management.

The Rural Medical Practitioner certificate does not entitle the certificate holder to describe himself as a Doctor and that is why the Medical

Inspector of the Plantations during his visit to the Tokowani Division of the Hollonghabi Tea Estate, asked for verification of the certificates of the

medical personnel.

It is also relevant to note that there is nothing on record to show that the petitioner was engaged as Medical Professional for diagnosing and

treating patient. It is well settled that there is a clear distinction between the occupation of the Grade-II Medical staff vis-Ã -vis a doctor, who renders

medical service by diagnosing diseases and treating patients by virtue of his medical knowledge and training. Thus the nature of the work profile rather

than the nomenclature of the job would be relevant, for determination of the status of the petitioner.

This Court cannot disregard the fact that the petitioner had all along described himself as a workman and never made a contrary claim of

discharging any managerial or supervisory responsibility. Most importantly, the conciliation proceeding and the reference under the I.D. Act was at the

instance of the petitioner only. It is also seen that nowhere in the entire proceeding the petitioner brought forth any material to show that he is not a

workman or his employment is in a managerial or administrative capacity and in fact, the petitioner described himself as a workman only.

On the merit of the challenge to the dismissal, it is seen that the petitioner was required to produce his testimonials on or before 13.6.2001 under

the Management’s communication dated 9.6.2001 (Annexure-4). But the concerned documents were never produced for three long years and

eventually only after the dismissal order was passed on 22.9.2004 (Annexure-12), the certificate of Rural Medical Practitioner was produced on

24.9.2004 (Exbt.-14). This shows that the petitioner is guilty of willful defiance and insubordination and such act would definitely amount to misconduct

under Clause 10(a)(i) of the Standing Order which being relevant is extracted hereinbelow, for ready reference :-

“10. Acts or omissions constitute misconduct :

(a) The following acts or omissions shall constitute gross misconduct:

Willful insubordination or disobedience whether alone or in combination with another or other of any lawful or a reasonable order of a superiorâ€​

16.The learned Labour Court after concluding that the workman had committed misconduct, also examined whether the quantum of punishment would

justify interference of the Court. In that context, the Presiding Officer noted that the workman committed the misconduct of willful insubordination to

the reasonable order of the management and such defiance will undermine the discipline in the Tea Estate. Thus the punishment of dismissal was

found to be proportionate to the misconduct committed by the workman.

When we analyse the materials on record and weigh the merit of the decision of the Labour Court it can be seen that conclusion is drawn on the

basis of relevant material and the Labour Court correctly answered the reference made to it. In such circumstances, interference with the Award

dated 30.12.2009 (Annexure-17) in the Reference Case No.3/2006 is found to be un-merited and the same is declared accordingly.

With the above order the case stands dismissed by leaving the parties to bear their cost.