Dismissed

The Management Of Ms Bokaro Steel Plant Represented Through Mr J T Kongari v. Their Workmen Shri K P Mahto Represented Through Secretary

Jharkhand HC29 Nov 2018WPC/4871/2017

Case brief

AI extract

What is this about?

Employer filed a writ petition challenging an Industrial Tribunal award that reduced punishment for an employee found guilty of defalcation due to systemic failures. The High Court refused interference, holding the Tribunal correctly considered system faults and evidence regarding post-punishment conduct.

What the court decided

AI extract

The Management Of Ms Bokaro Steel Plant… — Labour and Industrial Disputes | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(L) No. 4871 of 2017

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Employer in relation to the Management of M/S Bokaro Steel Plant, Bokaro, represented through Mr. J. T. Kongari, working as the Deputy General Manager (Law), Steel Authority of India Limited, Bokaro Steel Plant, Bokaro Steel City, Bokaro ….. Petitioner

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Versus

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Their workman Shri K. P. Mahto, represented through the Secretary, Bokaro Karamchari Panchayat, Bokaro Steel City, Bokaro ….. Respondent

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CORAM

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HON’BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioner: Mr. G. M. Mishra For the Respondent: Mr. Shivam Utkarsh Sahay

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14/29.11.2018 The present writ petition has been filed for setting aside the award dated 15.02.2017 (Annexure-4 to the writ petition) passed by the Central Government Industrial Tribunal No.1, Dhanbad (in short ‘the learned Tribunal’) in Reference No. 34/2012 whereby the punishment awarded by the petitioner-management to the concerned workman has been held not fair and justified with a direction to the petitioner-management to pay all the dues to the concerned workman as a regular employee of the management by maintaining his grade and if he has retired in the meantime, to give all the retiral benefits to him.

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The factual background of the case, as stated in the writ petition, is that the concerned workman (K. P. Mahto) joined the services of M/S Bokaro Steel Plant, Bokaro on 23.03.1977 and was posted as Storekeeper in T.A Department. The internal audit department of M/S Bokaro Steel Plant, Bokaro submitted its report in which it was pointed out that there was discrepancy in sale proceeds of the tickets at JNB Park and an amount of Rs.1,29,856/- towards the sale proceeds of the tickets was not submitted in the cash section. Based on the internal audit report, an explanation was sought from the concerned workman vide TA/D/BP/2001/493 dated 14.07.2001 alleging inter alia that he was responsible for sale of tickets being the In-charge of JNB Park. The concerned workman accepted to have committed the irregularity vide his reply dated 25.07.2001. The fact finding committee was also constituted vide Office Order No. GM(TS)/3935 dated 25.07.2001 to find out the details of irregularity. The

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concerned workman admitted to have defalcated a sum of Rs.1,29,856/- before the fact finding committee due to financial crisis in the family. After making enquiry, the fact finding committee submitted its report mentioning inter alia that the concerned workman prima facie appears to have embezzled an amount of Rs.1,29,856/. Thereafter, the petitioner-management issued charge sheetcum-order of suspension dated 02.08.2001 against the concerned workman, who on receipt of the charge sheet submitted his reply on 13.08.2001 stating therein that he is ready to deposit the said amount which was not deposited owing to his financial constraints. The petitioner-management commenced the domestic enquiry during which the concerned workman submitted petition mentioning therein that the defalcated amount has been deposited by him. The said enquiry concluded with submission of the report by the enquiry committee holding the concerned workman guilty of the charges and on the basis of the said report the disciplinary authority passed the order of punishment against the concerned workman reducing his pay to the lowest stage in the existing scale vide order dated 15.01.2002, which was communicated to the concerned workman vide Office Order No. PERS/TA/2002-124 dated 16.01.2002. Thereafter, the respondent-Union raised an industrial dispute and subsequently the Government of India, vide letter dated 29.03.2012 referred the dispute for adjudication before the learned Tribunal. The said reference was registered as Reference No. 34/2012 which was finally answered in favour of the concerned workman with a direction to the petitioner-management to give all the dues to the concerned workman treating him to be a regular employee and maintaining his grade. The petitioner-management has filed the present writ petition challenging the award dated 15.02.2017 before this Court.

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Learned counsel for the petitioner has assailed the impugned award on the ground that the learned Tribunal has failed to appreciate the admission of the concerned workman in respect of the defalcated money. Once the concerned workman admitted his guilt, it was immaterial and irrelevant to see as to whether there was any error in the system. The learned Tribunal also

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failed to consider the fact that the dispute was of the year 2002, however, the same was raised by the respondent-Union in the year 2011-12 and thus the claim made on behalf of the concerned workman was a stale one.

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Per-contra, learned counsel for the respondent-Union submits that the impugned award has been passed by the learned Tribunal after taking into consideration all the relevant issues including the factual aspect recorded in the enquiry report that the Deputy Manager (Administration,) JNB Park was negligent to the extent that he could not verify the previous cash receipts before forwarding the sale proceeds and proper maintenance of the records was also not done.

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Heard learned counsel for the parties and perused the relevant materials available on record. For better appreciation of the issue, the relevant part of the impugned award is quoted as under:

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“18. After hearing the parties, it is felt that the Tribunal has limited scope, after fair & proper domestic enquiry, it can only interfere in the quantum of punishment, but after perusing the enquiry report which is marked as Ext-M-3, it is felt proper to quote the finding of enquiry committee is below:-

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Shri Y.K Sinha, Dy. Manager (Admn.) JNB Park was negligent to the extent, he did not very the previous cash receipt before forwarding sales proceeds and proper maintaining was not done.

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Dr. M.A Salam has not exercise his control in the capacity of the incharge, JNB Park over such a sensitive issue nor devised a proper system for the same.

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The existing system of exchange of tickets and sales proceeds between the storekeeper and the market Assistant at the ticket counter is defective and inadequate.

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From the above finding, it appears that the Deputy Manager (Admn.) Y.K Sinha did not see the previous cash receipts if that is show how it will be known only the widow clerk defalcated the amount. Moreover another officer Dr. M.A Salam has not exercised his control. The system was defective which has been observed by the enquiry committee.

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This being so why a poor workman, who is at the bottom will be punished. System is to be framed by the authority and the subordinates are to act upon that. For the system failure, the person sitting at the bottom should not be punished.”

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It would thus appear that the learned Tribunal while passing the impugned award, has put heavy reliance on the enquiry report and has held that if there was failure in the system itself, single person should not be punished.

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The thrust of the argument of the learned counsel for the petitioner is that the respondent-Union raised industrial dispute after huge delay which was required to be considered by the learned Tribunal before passing the impugned award. In support of the said contention, learned counsel for the petitioner puts reliance on a judgment of the Hon’ble Supreme Court rendered in the case of

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Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-

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Division, Kota Vs. Mohan Lal reported in (2013) 14 SCC 543 wherein it has been held as under:

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“ 19. We are clearly of the view that though the Limitation Act, 1963 is not applicable to the reference made under the ID Act but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Gitam Singh[Rajasthan Development Corpn. v. Gitam Singh, (2013) 5 SCC 136 : (2013) 2 SCC (L&S) 369] that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed.”

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In the said case, the workman was a work charge employee who worked for about 286 days and the order of his termination was challenged after about 6 years. Under the said factual context, the Hon’ble Apex Court held that the High Court was in error in affirming the award of the Labour Court whereby reinstatement was ordered in favour of the workman. Thus, in lieu of reinstatement, the Hon’ble Apex Court ordered for payment of Rs.1,00,000/- to the workman by way of compensation.

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In the present case, the concerned workman was a permanent employee of the petitioner-management who was awarded major punishment by reducing his pay to the lowest stage in the existing scale. The learned Tribunal having taken into consideration the relevant facts, found the said punishment to be disproportionate and allowed the reference in favour of the respondent-Union. Moreover, the specific stand of the concerned workman is that immediately after the order of punishment, he approached the authority concerned and ultimately raised industrial dispute through the concerned Union. However, some time was consumed in getting the matter referred to the learned Tribunal and for such delay, the concerned workman cannot be held to be responsible. The said factual aspect has not been specifically controverted by the petitionermanagement by filing any rejoinder affidavit.

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The enquiry report clearly suggests that the system of exchange of tickets and sale proceeds between the Storekeeper and the Market Assistant at the ticket counter was itself defective and inadequate. The respondent-Union has claimed that the concerned workman had deposited the alleged defalcated amount due to immense pressure created by the petitioner-management. I find some force in the said claim of the respondent-Union as even after the observation made by the enquiry officer in his report that some other officers were also at fault for such incident, no action was taken against them. Moreover, the order of punishment was passed against the concerned workman after he deposited the defalcated amount. Curiously enough, even after the alleged incident, the concerned workman was entrusted with the same job. On perusal of the impugned award, it would appear that the learned Tribunal has actually not gone into the fairness of the domestic enquiry again, rather it considered the quantum of punishment awarded to the concerned workman considering that the alleged incident happened due to the system failure. All these facts go to prove that the concerned workman despite being at the bottom of the hierarchy, was penalised for the fault prevailing in the system itself. Thus, in my considered opinion, the learned Tribunal has properly

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considered all the relevant facts and evidence led by the parties during the industrial adjudication and the same does not warrant any interference by this Court under writ jurisdiction.

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In view of the aforesaid facts and circumstances, I see no reason to interfere with the impugned award dated 15.02.2017 passed by the Central Government Industrial Tribunal No.1, Dhanbad in Reference No. 34/2012. 12. The present writ petition being devoid of merit is accordingly dismissed.

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(RAJESH SHANKAR, J)

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Satish/A.F.R

The Management Of Ms Bokaro Steel Plant Represented Through Mr J T Kongari v. Their Workmen Shri K P Mahto Represented Through Secretary

Case brief

What is this about?

What the court decided

The Management Of Ms Bokaro Steel Plant Represented Through Mr J T Kongari v. Their Workmen Shri K P Mahto Represented Through Secretary

Case brief

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