Partly allowed

Chief Executive Officer earlier Known As Managing Director v. Shailendra Kumar Thakur And Ors.

Chhattisgarh HC22 Jun 2023WPL/135/2013

Case brief

AI extract

What is this about?

Writ petition challenging the State Industrial Court's order reinstating an employee with 60% back wages after a Labour Court awarded 25%. The High Court upheld reinstatement but reduced back wages to 25% due to custodial period.

What did the court decide?

Petitioner directed to reinstate respondent with 25% back wages; Industrial Court's order enhancing back wages to 60% set aside.

Chief Executive Officer earlier Known… — Pension and Retirement Benefits | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR WP(L) No. 135/2013

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RESERVED ON 12-6-2023 DELIVERED ON 22-6-2023

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Chief Executive Officer Earlier Known As Managing Director Bhilai Steel Plant, Bhilai, Dist Durg, CG, Chhattisgarh

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---- Petitioner

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Versus

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Shailendra Kumar Thakur And Ors. S/o Lt Shri Suryanarayan Thakur Aged About 40 Years R/o Block No. 6-B, Cross Street No. 3, Sector-6, Bhilai Nagar, Dist Durg, CG

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Member Judge State Industrial Court, Raipur, Dist Raipur, CG

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Presiding Officer Labour Court, Durg, Distt. Durg C.G.

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---- Respondents

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---------------------------------------------------------------------------------------------- For petitioner : Shri Kasif Shakeel, Adv. For Respondent No. 1 : Shri H.B.Agrawal, Sr. Adv. with Shri Pankaj Agrawal, Adv.

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Hon'ble Shri Justice N.K. Chandravanshi

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CAV Order

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This Writ Petition (L) under Article 226/227 of the Constitution of India has been filed by the Petitioner/employer against common order dated 4-4-2013 passed by the State Industrial Court, Chhattisgarh, Raipur, whereby the civil appeal (No. 13/CGIR Act/A/11/2012) preferred by the petitioner/ employer against the order dated 4-10-2012 passed by the Labour Court, Durg has been dismissed and the civil appeal (No. 11/CGIR Act/A/11/2012) preferred by the respondent/ employee against the same order of Labour Court, whereby petitioner/ employer has been directed to reinstate the respondent/ employee with 25% back wages, has been partly allowed by maintaining order of reinstatement of the respondent and increasing back wages from 25% to 60%.

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Brief facts reflected from the record are that the respondent /employee was Crane operator since 21-10-1991 in the Bhilai Steel Plant. On the ground of misconduct/unauthorized absence from duty on 6-3-2004, 8-3-2004, 9-3-2004, from 16-32004 to 31-3-2004, and from 1-4-2004 to 31-12-2004, total 294 days, his services were terminated vide order of the D.G.M. dated 16-7-2005. Being aggrieved by the order dated 16-7-2005, respondent/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 16-3-2004 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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2.1 The petitioner 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 respondent has never informed about his absence, and he has not informed about his arrest. It has been denied that the respondent had submitted any explanation to the charge sheet issued to him and he has ever applied for leave for the relevant

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period. It has been stated in the reply that the respondent has never informed about his arrest and ill health. It has been stated that a Memorandum dated 19-2-2005 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 respondent did not submit any explanation to the charge sheet. The notices issued to respondent 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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2.2 In support of their case, respondent/employee examined himself, Dr. Ashok Kumar Prasad, M.M. Fadke and Shankar Kumar Jha whereas petitioner/employer examined Inquiry officer R.K. Jha, Manager Laxman Bavne and Sr. Inspector A.K. Shrivastava.

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2.2 The Labour Court framed following issues :-

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i. क्याआवेदककेविवरुद्धकीगईविवभागीयजाँचअनुविचतऔरअवैधहै ?

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ii. क्याआवेदककोविदयागयादंडउविचतऔरवैधहै ? क्याआवेदकदुराचरणकादोषीहै ?

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iii. क्याआवेदकवि"छलाबकायावेतन"ानेकाअविधकारीहै ?

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iv. सहायताएवंव्यय ?

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The Labour Court treated the issue no. 1 as preliminary

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issue and vide order dated 22-4-2010, it has been held that

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departmental inquiry initiated against Respondent/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 4-10-2012 considered and decided other issues, observing therein that holding guilty to the respondent/employee in the departmental proceeding had already been declared unfair and illegal, hence vide impugned order further held that petitioner/employer has failed to prove the fact that absence of respondent/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 4-10-2012, the petitioner/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 4-4-2013 upheld the finding of the Labour Court that it is not proved that absence of the respondent/employee is unauthorized and dismissed the appeal of the petitioner. However, it partly allowed the appeal of respondent/employee and granted 60% of back wages to him in place of 25% back wages as granted by the Labour Court. Being

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aggrieved by this order of Industrial Court, the petitioner/employer has preferred instant writ petition.

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Learned counsel for the petitioner submits that the notices of the departmental inquiry were sent to the employee on his local and permanent address. Notice was also affixed on the notice board. It is also submitted that the Inquiry Officer gave maximum opportunity to the respondent/employee to participate in the inquiry, therefore, there is no violation of principles of natural justice and finding of both the Courts below in this regard are contrary to the material available on record. It is further submitted that the employee has not produced any application for leave supported by a valid medical certificate with regard to his unfitness or ailment issued by a medical officer of BSP or any government medical officer which is necessary requirement for medical leave. It is also submitted that the employee in para 7 of his statement on merit before the Labour Court has himself admitted that he has not applied for leave and his leave was never sanctioned for 294 days. It is next contended that both the courts below have erred in granting back wages as in para 8 of the statement, the respondent/ employee has admitted that he remained in jail from 17-9-2005 to 3-3-2009, even as per statement of his brother-in-law, he had remained in jail subsequent also. Despite these facts, back wages have been granted and further increased by the appellate Court. It is further contended that Rule 16 of the Standing Orders provides for application for leave and Rule 17 provides procedure if address is changed, but the respondent/employee has not acted in accordance with these Rules. To buttress his submission, he placed reliance on Union of

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India and other Vs. G. Annadurai [(2009) 13 SCC 469], Chennai Metropolitan Water Supply and Sewerage Board and ors. Vs. T.T. Murali Babu [(2014) 4 SCC 108] and Anjana Mittal Vs. Oil and Natural Gas Corporation Ltd. [(2020) 11 SCC 710].

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On the other hand, learned Sr. Counsel appearing for the respondent/employee supports the order passed by both the Courts below and submits that order passed on 22-4-2010 has never been put to challenge, whereby it had been held by the Labour Court that departmental inquiry conducted against the respondent / employee is unfair and illegal. It is further submitted that without providing opportunity of hearing, respondent/employee has been held guilty resultantly terminated from service. It is next submitted that respondent/ employee by adducing oral and documentary evidence Ex. P-1-C to P-8, (2)C, which he had received from department through RTI, has proved that information was given about his absence and various medical documents had also been submitted, notice was never served to him, despite that, he has been held guilty in the departmental inquiry which is clear violation of principle of natural justice. It is further contended that concurrent finding of both the Courts below does not require any interference by this court in exercise of power vested to this Court under Article 226/227 of the Constitution of India. In this regard he relied on the judgment rendered by the Hon’ble Supreme Court in the case of Mohd.Yunus Vs. Mohd. Mustaqim and others [AIR 1984 SC 38] and Indian Oil Corporation Ltd. Vs. Ashok Kumar Arora [1997 (3) SCC 72]

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Rival contentions put-forth by learned counsel for either parties were considered and I have perused the material available on record along with original record of Labour Court and Appellate/ Industrial Court.

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Perusal of record of Court below shows that vide order dated 22-4-2010, it was held by Labour Court that departmental inquiry initiated against the employee was unfair and illegal as principle of natural justice has not been followed, the record does not shows that this finding was ever put to challenge. Subsequently, following aforesaid finding in impugned order dated 4-10-2012, learned Labour Court after considering oral and documentary evidence has held that, although respondent/employee was absent from his duty in alleged period but he had informed about his absence to the employer and various documents including oral and documentary medical documents had also been submitted by him to the office of employer which has been proved by him. Hence, in view of evidence brought on record, learned Labour Court had held that petitioner/ employer has failed to prove that absence of respondent/ employee was unauthorized/illegal.

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Appeals were preferred against order dated 4-10-2012 by both the parties before the CG State Industrial Court, Raipur. Perusal of detailed order passed by learned appellate Court shows that facts, documents and evidence of the case has further been evaluated by the appellate Court, thereafter appeal preferred by petitioner /employer was dismissed and appeal preferred by respondent / employee has been partly allowed as has been

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indicated in the opening para of this order, which has been challenged by petitioner/employer in this writ petition.

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In the case of Mohd. Yunus (supra), Hon’ble Supreme Court while considering power of writ jurisdiction of High Court under Article 227 of the Constitution has observed in para 7 as below :-

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“ 7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior court or tribunal functions within the limits of its authority”, and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.”

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In the case of Indian Oil Corporation (supra), it has been held that in cases of departmental inquiry and finding recorded therein, the High Court does not exercise the powers of appellate Court/ authority. The jurisdiction of High Court in such cases is very limited, for instance, where it is found that the domestic inquiry is vitiated because of non-observance of principle of natural justice, denial of reasonable opportunity, finding are based on no evidence,

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and/ or punishment is totally disproportionate to the proved misconduct of an employee.

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In view of aforesaid settled proposition of law, if facts of instant case are taken into consideration, then it is apparent that, vide order dated 22-4-2010, Labour Court had held that departmental inquiry held against respondent/employee is unfair and illegal, which was subsequently followed in the impugned order dated 4-10-2012 and 25% back wages were also granted by the Labour Court. Facts and issue involved in instant case have been further considered in detail by State Industrial Court in appeal and upheld order of reinstatement of respondent/employee passed by Labour Court and further back wages of 25% was increased to 60%.

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Having considered the documentary and oral evidence adduced by respondent/employee out of which, most of documents which have been marked as Ex. P-1C to P-8-C have been received from employer’s office by the respondent/employee shows that he had informed about his absence on various occasions and has also submitted medical document with regard to his medical illness.

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As has been observed by Hon’ble Apex Court in the aforesaid judgment, on the basis of power under Article 226/227 of the Constitution of India, the High Court ought not to act as an appellate court or tribunal and scope of interference in departmental inquiry are very limited. In instant case, since there is concurrent finding of both the Courts below in respect of reinstatement of respondent/ employee and matter has further been minutely

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considered by appellate Court, hence, in view of above settled proposition of law, this Court is not inclined to interfere with the impugned orders, so far as reinstatement of respondent/employee is concerned.

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Evidence available on record shows that respondent/ 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 17-9-2005 to 3-3-2009, 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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Facts of instant case are totally different from the cases referred by learned counsel appearing for the petitioner/employer, as those cases had not come before the High Court after consideration of Labour Court and Appellate Court, hence those case laws are not helpful to him in instant case.

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In the result, the writ petition is partly allowed to the above extent and petitioner is directed to reinstate the respondent /employee with 25% of back wages, if the same has not already been complied with.

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No cost.

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Sd/(N.K. Chandravanshi) JUDGE

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Pathak/-

Chief Executive Officer earlier Known As Managing Director v. Shailendra Kumar Thakur And Ors.

Case brief

What is this about?

What did the court decide?

Chief Executive Officer earlier Known As Managing Director v. Shailendra Kumar Thakur And Ors.

Case brief

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What did the court decide?

What the court decided

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