Disposed

Management of West Coast Paper Mills Ltd, v. Gajanan Binge Bangur Nagar, Dandeli

Karnataka HC20 Mar 2017WP/68240/2010

Case brief

AI extract

What is this about?

High Court disposed of management's writ petition challenging a Labour Court award set aside a workman's dismissal for absenteeism. Court held ex parte enquiry proceedings were vitiated and remanded matter to Enquiry Officer for fresh proceedings.

What did the court decide?

Writ petition disposed with direction to hold enquiry afresh and maintain reinstatement status quo.

Management of West Coast Paper Mills Ltd… — Labour and Industrial Disputes | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^TH DAY OF MARCH 2017

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BEFORE

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THE HON’BLE DR. JUSTICE VINEET KOTHARI

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WRIT PETITION No.68240/2010(L-TER)

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BETWEEN:

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MANAGEMENT OF WEST COAST PAPER MILLS LTD. BANGUR NAGAR, DANDELI, UTTAR KANNADA DISTRICT REP. BY ITS EXECUTIVE DIRECTOR

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... PETITIONER

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(BY SRI.RAVI HEGDE, ADV.)

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AND:

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GAJANAN BINGE, BANGUR NAGAR, DANDELI.

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... RESPONDENT

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(BY SRI. ANANT P. SAVADI, ADV.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED AWARD PASSED IN REFERENCE NO.15/2006 DATED 7.08.2010 PASSED BY THE LEARNED PRESIDING OFFICER, ADDITIONAL LABOUR COURT, HUBLI, VIDE ANNEXURE-R.

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Mr.Ravi Hegde, Adv. for the petitioner. Mr. Anant P Savadi, Adv. for the respondent.

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West Coast Paper Mills Ltd. has challenged by way of this writ petition under Articles 226 and 227 of the Constitution of India, the award of Additional Labour Court, Hubli, dated 7.8.2010 in Ref. No.15/2006, Gajanana B. Binge

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Vs. The Management of West Coast Paper Mills Ltd.

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By the said order and award, the learned Labour Court, Hubli, has set-aside the order of dismissal passed by the Disciplinary Authority, dated 22.12.2004 ( wrongly mentioned as 22.11.2004 in the impugned order ) and directed for reinstatement into service with 50% of back wages.

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The said workman is said to have been since reinstated into service, however, the payment of backwages was not done, in view of the interim order passed by the co-ordinate Bench of this Court, dated 9.8.2011 .

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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Assailing the said award, the learned counsel for

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the Management, Sri. Ravi Hegde, has submitted that once the Disciplinary Enquiry was held to be a just and fair by the learned Labour Court by a separate previously passed order vide Annexure-P, dated 30.09.2009, thereafter, in the impugned order and award dated 7.8.2010, it could not have taken again the said issue and held that the enquiry was not fair or was held exparte against the respondent workman and the explanation furnished by the respondent workman for the unauthorised absence, for which he was charge sheeted was sufficient and therefore, dismissal order was unsustainable.

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The relevant findings of the learned Labour Court

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are quoted below for ready reference:

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“ 14. The management has contended that the workman remained 21 ½ days, 48 ½ during 2002 & 2003 respectively and the workman had given letters to the management as per Ex.M 10 to M.12 admitting that he is a habitual absentee and he would attend the duty regularly in future. On perusal of these explanations it appears that the workman used to

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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remain absent from time to time due to ill health of his mother, wife and himself. The workman has also produced benefit payment slips issued by ESI Hospital at Ex.W.1 to W.6 and he has also produced certificates issued by ESI hospital regarding treatment, admission and discharge of the workman in ESI hospital at Ex. W.7 to W.12. He has also produced prescription slips for having taken treatment from 16.6.2004 to 19.11.2004 at Ex. W. 13. The defence of the workman is that he was sick due to accidental fall while he was discharging his official duties and the management suppressed this fact and asked him to take treatment at ESI hospital . This contention of the workman is not specifically denied by the management either in its written statement or cross-examination of the workman. The medical certificates and other documents prima facie go to show that the workman was sick during the month of May 2004 to November 2004. The workman has also produced medical certificate at Ex.W.11 for the period from 31.10.2004 to 21.11.2004. Therefore it appears that due to ill health of the workman, his mother and wife, he failed to attend his duty regularly. On perusal of

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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attendance of the workman it is clear that the workman remained absent for 40 days from 1.1.2004 to 30.6.2004 and it goes to show that he used to remain absent from 2 days to 11 days and he used to attend duty during remaining period. This absence appears to be on medical ground . The enquiry officer has not at all given sufficient opportunity to the workman to participate in the enquiry. The charge sheet was issued as per Ex.M.1 dated 30.7.2004 to the workman and the enquiry was fixed on 6.8.2004, on which day the workman failed to appear before the enquiry authority and therefore the enquiry was postponed to 26.8.2004. It appears that till the date of issue of second charge sheet on 22.11.2004 no enquiry proceedings were conducted. The second charge sheet was issued on 22.11.2004 and it was served on the workman on the same day at 5.40 p.m. and the enquiry was fixed on the very next day i.e. 23.11.2004 at 3.30pm. Therefore, it is clear that the workman was not provided even 24 hours of time to prepare himself to face the enquiry by filing objections and by producing documents to the charge sheets. On 23.11.2004 the evidence of the management representative was recorded and

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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the case was adjourned to 26.11.2004. However it appears no enquiry was conducted on 26.11.2004 and the enquiry officer gave his findings on 27.11.2004. It is the specific contention of the workman that on 23.11.2004 he had intended and went to participate in the enquiry and he was not allowed to enter the enquiry hall and he was obstructed by the management from entering the enquiry hall and the management deliberately proceeded with exparte enquiry etc. The management served the enquiry proceedings dated 23.11.2004 on the workman on the same day at 9.00pm, which goes to show that the workman was very much at Dandeli on 23.11.2004 and he received the proceedings of enquiry. There was no reason for the workman to remain absent from the enquiry. It can not be said that the workman was not interested in job. In fact the explanation given by him go to show that the entire family depends on him for survival and therefore the contention of the workman that he was not allowed to enter the premises of enquiry on 23.11.2004 appears to be true and correct. Therefore it is crystal clear that the workman was not at all given any opportunity to participate in the enquiry proceedings. It

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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further appears that the enquiry was conducted not to find out the truth but to complete the formality of enquiry and to dismiss the workman from service. The disciplinary authority that is the Executive Director passed the final order dismissing the workman from service on the basis of the report of the enquiry officer. Therefore I am of the opinion that the findings of enquiry officer, which are against the principles of natural justice and certified standing orders are not sustainable in law and the same are liable to be set aside. The learned counsel for the respondent relied upon the decision reported in (1999)1-SCC – 300 in case of Cipla Ltd. V/s. Jayakumar R. and another, in which their lordships have held that there should be specific averment in the pleadings regarding malafide transfer of the workman. The learned counsel for the respondent argued that there is no pleading regarding mala fide act on the part of the management. Even if there is no specific pleading in the petition in this regard the circumstances go to show that the management had highly biased and prejudiced against the workman.

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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15. The learned counsel for the workman relied upon the decision reported in 1973 – SC – 1227 in case of the workman of M/s. Firestone Tyre and Rubber Co. of India Pvt. Ltd., V/s. The management and others, in which their lordships have held that as per Sec. 11-A of the Industrial Disputes Act even where the dismissal of the workman by an employer on the ground of misconduct is preceded by proper and valid domestic enquiry, Sec. 11-A now empowers the Labour Court to reappraise the evidence and examine the correctness of the finding thereat. Sec. 11-A further empowers it to interfere with the punishment and alter the same. Therefore even if the enquiry is held as fair and proper by this court, it can be considered correctness of the finding of the disciplinary authority dismissing the workman.

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16. The learned counsel for the workman argued that the general manager has issued charge sheets and as per the certified standing order the manager of the respondent-management has to issue charge sheet and therefore the charge sheets are not issued by the competent person and the same are highly biased and prejudged and management had

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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decided to dismiss the workman. On perusal of the certified standing order of the management the competent person to issue charge sheet and initiate disciplinary action is the manager. The learned counsel for the management argued that the powers of the manager are delegated to the general manager. However, no evidence is produced in this regard. Therefore the disciplinary proceedings initiated are not in accordance with the provisions of certified standing order.

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17. Therefore looking from any angle I am of the opinion that the enquiry conducted by the management is defective. The workman remained absent due to ill health, which can not be treated as misconduct. There is no doubt remaining absent frequently without any valid reason amounts to in discipline and misconduct. However remaining absent due to ill health which is beyond his control can not be treated as a misconduct for which the workman can not be dismissed. Therefore for these reasons I hold that the management is not justified in dismissing the

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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workman from service. Hence my finding on issue No. 7 is in the negative. ”

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On the other hand, learned counsel for the

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respondent workman, Sri. Anant P. Savadi, supporting the impugned award and order of the learned Labour Court has urged that the explanation furnished by the respondent workman that he was attending the medical conditions of himself, his wife and mother, during the said period of absence in the years 2002 to 2004 and ESI slips were also produced in evidence, still enquiry proceedings were held exparte without considering the evidence and with pre-determination, the learned Disciplinary Authority passed the dismissal order in the aforesaid manner.

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He also submitted that the learned Labour Court has gone into all the details of evidence and has found that this explanation was justified and therefore, the learned Labour Court rightly set-aside the dismissal order passed by the Disciplinary Authority and has directed for reinstatement with

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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50% of backwages, which has not been so far paid by the petitioner Management to the respondent workman.

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Having heard the learned counsel for the parties

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and upon perusal of the impugned award and order of the learned Labour Court, it appears that the learned Labour Court in the aforesaid quoted portion of the impugned order, has gone through the proceedings of the enquiry in the present case and has found that not only enquiry was proceeded exparte without giving reasons, but the explanation furnished by the respondent workman was also sufficient to hold that the dismissal of the respondent workman from service in such a case was not proper punishment and therefore, the same deserved to be set-aside.

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However, this Court is of the view that once the learned Labour arrived at a conclusion that the exparte enquiry proceedings against the respondent workman were not justified, as it would appear from para-11 of the impugned award, which is also quoted below that the notice was issued to the workman on 22.11.2004 fixing the date of enquiry as 23.11.2004 at 3.30

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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p.m. This notice was served on 22.11.2004 at 5.40 p.m. On

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23.11.2004, a representative of the Management was examined, but the workman did not appear and the enquiry proceeded exparte and the same was adjourned to 26.11.2004 “for awaiting response from the workman” . The enquiry officer however, gave his finding on the very next date i.e. on 27.11.2004 without really getting any response from the workman and held that the above charges were proved. The fast track manner, in which the enquiry was proceeded during this period of four days and concluded the proceedings exparte, renders the enquiry proceedings vitiated. Therefore, to that extent, the learned Labour Court was justified in holding so.

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Para-11 of the impugned order of the learned

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Labor Court is quoted below for ready reference:-

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1. On 22.11.2004, the enquiry officer issued notice of enquiry in respect of above said both charge sheets, fixing the date of enquiry as 23.11.2004 at 3.30 p.m. This notice was served on the workman on 22.11.2004 at 5.40 (which appears to be at p.m.). On 23.11.2004, the reporter i.e., management representative was

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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examined. The workman did not appear before the enquiry officer and therefore, the enquiry was proceeded exparte and the enquiry was adjourned to 26.11.2004 for awaiting response from the workman. The enquiry office gave his enquiry findings on 27.11.2004 as per Ex.M.7 holding that both charges in respect of absenteeism were proved. On the basis of the enquiry report the disciplinary authority passed the order dismissing the workman form service as per Ex.M.8.

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But at that stage itself, the learned Labour Court

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ought to have remitted the matter back to the enquiry officer to hold an enquiry afresh after giving reasonable opportunity of hearing to the respondent workman to defend himself, instead of assuming the role of the enquiry officer himself and arriving at the findings of the facts about sufficiency of the explanation furnished by the respondent workman, it should have been best left for the Disciplinary Authority itself to arrive at the findings, after taking into account the explanation and evidence furnished by the respondent workman.

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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The contentions of the respondent workman that

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even the charge sheet was defective and naming of the enquiry officer in the charge sheet shows the bias on the part of the management could also very well be raised before the enquiry officer, who could consider the same in accordance with law. Therefore, this Court while agreeing that the learned Labour Court to the extent the exparte enquiry proceedings in the present case being vitiated, cannot uphold its finding of the facts on the merits of the charge sheet and the evidence furnished by the respondent workman. Therefore, the matter would obviously be required to remand back to the learned Enquiry Officer in the present case.

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Accordingly, the writ petition of the Management is disposed of with a direction to the Enquiry Officer in the present case to hold the enquiry afresh from the stage of charge sheet having been served upon the respondent workman, who will be given a reasonable and fair opportunity to lead his evidence for his absence without the leave, for which he was given the charge sheet.

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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The said Enquiry Officer will record the evidence

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of both sides again and give a fresh enquiry report expeditiously and thereafter, the Disciplinary Authority may proceed further in accordance with law.

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The respondent workman who has already reinstated in the present case, will appear in the first instance before the learned concerned Enquiry Officer on 19.04.2017 and a period of six months is allowed to the parties to conclude the said enquiry.

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The respondent workman is also directed to cooperate in the enquiry proceedings.

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It is further directed that his reinstatement in the

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service in pursuance of the order of the learned Labour Court shall not be disturbed by the Management and that status quo will be maintained by the Management. As far as the payment of backwages to the extent of 50% awarded by the learned

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Date of Order: 20.03.2017 in WP No.68240/2010(L-TER) The Management of West Coast Paper Mills Ltd. Vs. Gajanan Binge

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Labour Court is concerned, the same would abide by fresh final

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order to be passed by the Disciplinary Authority.

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Writ petition of the Management is disposed of.

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No costs.

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Sd/JUDGE

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JTR

Management of West Coast Paper Mills Ltd, v. Gajanan Binge Bangur Nagar, Dandeli

Case brief

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Management of West Coast Paper Mills Ltd, v. Gajanan Binge Bangur Nagar, Dandeli

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