Dismissed

Shailendra Kumar Thakur v. Chief Executive Officer Earlier Known as Managing Director

Chhattisgarh HC11 Dec 2023WA/492/2023

Case brief

AI extract

What is this about?

This writ appeal challenged an order granting the employer's writ petition which directed reinstatement of the appellant with 25% back wages. The High Court dismissed the appeal, upholding the 25% back wages despite the Industrial Court having granted 60%, ruling the appellant's prolonged absence was due to jail time.

What the court decided

AI extract

Shailendra Kumar Thakur Vs Chief Executive Officer Earlier Known as Managing Director — Chhattisgarh HC (2023) — LawSathi Research

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WA No. 492 of 2023

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Shailendra Kumar Thakur S/o. Late Shri Suryanarayan Thakur, Aged About 40 Years R/o. Block No.6-B, Cross Street No.3, Sector-6, Bhilai Nagar, District - Durg, Chhattisgarh.

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---- Appellant

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Versus

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Chief Executive Officer Earlier Known As Managing Director Bhilai Steel Plant, Bhilai, District - Durg, Chhattisgarh.

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Member Judge, State Industrial Court, Raipur, District - Raipur, Chhattisgarh.

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Presiding Officer, Labour Court, Durg, District - Durg, Chhattisgarh.

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---- Respondents

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Cause-title taken from Case Information System

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For Appellant : Mr. H.B. Agrawal, Senior Advocate assisted by Ms. A. Sandhya Rao, Advocate For Respondent No.1 : Mr. Kashif Shakeel, Advocate

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Hon'ble Shri Ramesh Sinha, Chief Justice

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Hon'ble Shri Ravindra Kumar Agrawal, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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11.12.2023

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Heard Mr. H.B. Agrawal, learned Senior Advocate assisted by Ms. A. Sandhya Rao, learned counsel for the appellant as well as Mr. Kashif Shakeel, learned counsel, appearing for respondent No.1 and perused the impugned order and materials available on record.

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The appellant has filed this writ appeal assailing the order dated 22.06.2023 passed by the learned Single Judge in WP(L) No. 135 of 2013 (Chief Executive Officer v. Shailendra Kumar Thakur & Ors.) by which the learned Single Judge has partly allowed the writ petition filed by the writ petitioner/respondent No.1 herein.

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Brief facts of the case are that the appellant/employee was Crane operator since 21.10.1991 in the Bhilai Steel Plant. On the ground of misconduct/unauthorized absence from duty on 06.03.2004, 08.03.2004, 09.03.2004, from 16.03.2004 to 31.03.2004, and from 01.04.2004 to 31.12.2004, total 294 days, his services were terminated vide order of the D.G.M. dated 16.07.2005. Being aggrieved by the order dated 16.07.2005, appellant/employee preferred an application before the Labour Court, Durg under Section 31(3) read with Section 61 of the CG Industrial Relations Act, 1960 on the ground that departmental inquiry against him, has been conducted violating the principles of natural justice and against the Standing order of the Bhilai Steel Plant. It was also pleaded in the application that information was given regarding his absence to the employer and he had applied for leave for the period of absence, he was under arrest from January to 16.03.2004 on a false case and as he was unfit due to mental illness, medical documents in this regard have also been filed by him, therefore, he could not attend his duty. Despite that, without following principles of natural justice, he has been removed from service. Therefore, his removal is totally illegal.

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The respondent No.1/employer filed reply to the application stating therein that the departmental inquiry has been conducted following the principles of natural justice and the Standing Order of Bhilai Steel Plant, the appellant has never informed about his absence, and he has not informed about his arrest. It has been denied that the appellant had submitted any explanation to the charge sheet

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issued to him and he has ever applied for leave for the relevant period. It has been stated in the reply that the appellant has never informed about his arrest and ill health. It has been stated that a Memorandum dated 19.02.2005 along with statement of charges and statement of allegations have been issued to the respondent. It was sent to him on his permanent and local address by Registered post as well as it was pasted on the Notice Board of the Department, but the appellant did not submit any explanation to the charge sheet. The notices issued to appellant received back with the remark that “not claimed and the addressee does not remain at home. Therefore, in view of above fact, there was no option left with the Inquiry Officer except to proceed ex-parte against the respondent and after due process of inquiry, respondent has been held guilty of misconduct/ unauthorized absence, hence his services were terminated.

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In support of his case, appellant/employee examined himself, Dr. Ashok Kumar Prasad, M.M. Fadke and Shankar Kumar Jha whereas respondent No.1/employer examined Inquiry officer R.K. Jha, Manager Laxman Bavne and Sr. Inspector A.K. Shrivastava.

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The Labour Court framed following issues :-

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i. D;k vkosnd ds fo:) dh xbZ foHkkxh; tkWap vuqfpr vkSj voS/k gS \

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ii. D;k vkosnd dks fn;k x;k naM mfpr vkSj oS/k gS \ D;k vkosnd nqjkpj.k dk nks"kh gS \

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iii. D;k vkosnd fiNyk cdk;k osru ikus dk vf/kdkjh gS \

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iv. lgk;rk ,oa O;; \

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The Labour Court treated the issue No.1 as preliminary issue and

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vide order dated 22.04.2010, it has been held that departmental inquiry initiated against appellant/employee was unfair and illegal, as without providing opportunity of hearing and without following principles of natural justice, he has been held guilty ex-parte in the departmental proceeding. After providing further opportunity of hearing and to adduce evidence to both the parties, learned Labour Court vide subsequent order dated 04.10.2012 considered and decided other issues, observing therein that holding guilty to the appellant/employee in the departmental proceeding had already been declared unfair and illegal, hence vide impugned order further held that respondent No.1/employer has failed to prove the fact that absence of appellant/employee was unauthorized and illegal, thus, misconduct has not been proved, therefore he is awarded 25% back wages.

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Challenging the order of the Labour Court dated 04.10.2012, the respondent No.1/employer preferred an appeal under Section 65 of the CG Industrial Relations Act, 1960 before the State Industrial Court, Chhattisgarh, Raipur and the respondent/ employee also preferred an appeal against the same order praying for grant of 80% back wages.

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The Industrial Court by the common order dated 04.04.2013 upheld the finding of the Labour Court that it is not proved that absence of the appellant/employee is unauthorized and dismissed the appeal of the respondent No.1/employer. However, it partly allowed the appeal of appellant/employee and granted 60% of back wages to him in place of 25% back wages as granted by the Labour Court.

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Being aggrieved by the common order dated 04.04.2013 passed by the Industrial Court, respondent No.1/employer has preferred writ petitioner bearing WPL No. 135 of 2013 before the learned Single Judge, which was partly allowed by the learned Single Judge vide impugned order dated 22.06.2023 and the respondent No.1/employer was directed to reinstate the appellant/employee with 25% of back wages. Aggrieved by the said order appellant/ employee has filed the instant appeal.

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Learned Senior Advocate appearing for the appellant/employee submits that the learned Single Judge filed to see that there was nothing on record to show that for how much time appellant was in jail, but not admitting even if for sometime appellant was in jail then non claiming 20% backwages as mentioned in appeal of Industrial Court for claim of 80% backwages was legal and proper and should have been granted. He further submitted that the order holding enquiry illegal on 22.04.2010 was never challenged by the respondent No.1, therefore, it became final cannot be interfered with as was claimed in writ petition filed by respondent No.1. He further contended that the Apex Court in cases where no misconduct is proved as a natural consequences 100% backwages has to be granted, therefore, at least 80% backwages as claimed in appeal before Industrial Court should have been granted by the Single Judge and refusal to grant any backwages is illegal and liable to be modified.

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On the other hand, learned counsel, appearing for the respondent No.1 opposed the aforesaid submission.

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From perusal of the impugned order and record of the Court below shows it transpires that the learned Single Judge has rightly observed that evidence available on record shows that appellant/ employee was in jail for long time, hence he was absent from his duty. He has admitted in his deposition para 8 of his statement that he was in jail since 17.09.2005 to 03.03.2009, prior to that also he was in jail for few months, thus, he was in jail for about 4 years. Hence, considering these facts, increase of 60% back wages by the Industrial Court instead of 25% granted by Labour Court is not found to be just and proper. Hence, aforesaid increase of back wages awarded by the appellate Court is set aside and back wages granted by the Labour Court i.e. 25% is upheld.

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Considering the submissions advanced by the learned counsel for the parties, perusing the impugned order and the finding recorded by the learned Single Judge while partly allowing the writ petition filed by the respondent No.1/employer by directing them to reinstate the appellant/employee with 25% of back wages, we are of the considered view that the learned Single Judge has not committed any illegality, irregularity or jurisdictional error warranting interference by this Court.

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Accordingly, the writ appeal being devoid of merit is liable to be and is hereby dismissed. No cost(s).

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Sd/Sd/(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Akhilesh/Chandra

Shailendra Kumar Thakur v. Chief Executive Officer Earlier Known as Managing Director

Case brief

What is this about?

What the court decided

Shailendra Kumar Thakur v. Chief Executive Officer Earlier Known as Managing Director

Case brief

What is this about?

What the court decided

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