M/S Tirupati Jute
Industries P.Ltd.& ANR Vs. State of West Bengal & Ors. [2009] INSC 724
(13 April 2009)
Judgment
Non-reportable IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2429 OF
2009 (Arising out of SLP [C] No.26444 of 2005) M/s. Tirupati Jute Industries P.
Ltd. & Anr. ... Appellants State of West Bengal & Ors. ... Respondents
WITH C.A. No. 2583 of 2009 (@ SLP(C) No.26446 of 2005) C.A. No. 2584 of 2009 (@
SLP(C) No.26456 of 2005) And C.A. No. 2585 of 2009 (@ SLP(C) No.26449 of 2005)
R.V. RAVEENDRAN, J.
1.
Leave
granted. Heard learned counsel. The appeals involve a common question.
Kashinath, Keshab Lal Shaw, Shambu Nath and Bhupen Lal (the fourth respondent
in the four appeals) were workmen of the appellant.
2.
The
first three appeals relate to a charge-sheet dated 7.6.1990 issued to
Kashinath, Keshab Lal Shaw and Shambu Nath alleging that on 2.6.1990, they
along with some other workmen kept the General Manager of the company (S. R.
Singh) under wrongful confinement, misbehaved with him and used filthy language
and threatened to assault him physically if the charge-sheet cum suspension
earlier issued to some workmen was not withdrawn. It was also alleged that on
6.6.1990 the said workmen again kept the General Manager (S.R. Singh) under
wrongful confinement in the Spinning Department and later at the Mill office
and threatened him with dire consequences if the charge-sheet cum suspension in
respect of one Jayaram was not withdrawn immediately; and that they also used
filthy language against him, shouted derogatory slogans and even prevented him
from attending to calls of nature. An enquiry was held into those charges and
the Enquiry Officer submitted a report dated 16.12.1990 holding them guilty of
the charges. Thereafter by orders dated 21.12.1991, the appellant informed the
said three workmen that the management had considered and accepted the proceedings
and findings of the Enquiry Officer, and having found that there were no
extenuating circumstances, had decided to dismiss them from service for proved
misconduct with effect from that date.
3.
The
facts in the last appeal relating to Bhupen Lal are similar. He was issued a
charge-sheet dated 14.5.1991 alleging that earlier on the same day, he was
sitting idle and smoking in the vice room of the spinning department, and when
he was asked by the Chief Engineer to attend to his job, he failed to comply;
and later, he followed the Chief Engineer to the batching line and started
abusing him in filthy language and threatened him with dire consequences and
also tried to physically assault the Chief Engineer but was prevented by other workmen
and the said acts constituted a misconduct. After holding an inquiry, the
Enquiry Officer submitted a report dated 7.7.1991 holding the fourth respondent
guilty of the charge. Thereafter the General Manager by letter dated 19.7.1991
informed the workman that the management has agreed with the said findings of
the Enquiry Officer and there were no extenuating circumstances in his favour
and consequently he was dismissed from service with effect from that date.
4.
Disputes
were raised in regard to the said four dismissals and the appropriate
government referred the disputes as to whether the dismissal of the workmen was
justified and to what relief they were entitled, to the Industrial Tribunal.
Though the appellant-employer initially appeared in the reference cases before
the Industrial Tribunal, it did not subsequently contest the matters. The
Industrial Tribunal, by separate awards accepted the contention of the workmen
that they were not given due opportunity to contest the enquiry and therefore held
that the orders of dismissal were opposed to the principles of natural justice.
Consequently it directed reinstatement of the workmen with full backwages from
the date of their dismissal till the date of reinstatement.
5.
The
four awards were challenged by the management in a common batch of writ
petitions (WP No.1941-44/1998) contending that the enquiry was fair and proper
and adequate opportunity was given to the employees.
The workmen however
raised a fresh contention at the hearing before the learned Single Judge that
their orders of dismissal were illegal as they were not approved by the Manager
of the establishment or the employer as required by Standing Order 14(e) which
reads thus :
5 "No order of
dismissal shall be made unless the workman concerned is informed in writing of
the alleged misconduct and is given an opportunity to explain the circumstances
alleged against him. The approval of the Manager of the establishment and,
where there is no manager, of the employer, is required in every case of
dismissal, and when circumstances appear to warrant it, the manager or the
employer may, whether an appeal has or has not been preferred, institute
independent inquiries before dealing with the charges against a workman."
A learned Single
Judge of the Calcutta High Court disposed of the writ petitions by order dated
9.12.2004. He held that the Tribunal committed an error in not taking notice of
the fact that the workmen were given due opportunity to defend themselves in
the domestic enquiry; that though the Enquiry Officer had served several
notices directing them to appear in the enquiry, the workmen did not choose to
appear in the enquiry; and that therefore it could not be said that the enquiry
was opposed to principles of natural justice. In the case of Bhupen Lal, the
workman had in fact appeared and participated in the enquiry. The learned
Single Judge, being of the view that the finding of the Tribunal was contrary
to the record, set aside the said finding in all the four awards. But the learned
Single Judge accepted the new contention urged by the workmen and held that as
there was no approval in regard to the dismissal as required under Standing
Order 14(e), the order of dismissal passed by the disciplinary authority had no
effect in the eye of law.
Consequently the
learned Single Judge quashed the orders of dismissal for want of approval under
Standing Order 14(e) and directed that the workmen be reinstated with all
consequential benefits as per the award of the Industrial Tribunal.
6.
The
appellant challenged the common order of the learned Single Judge in MAT
No.80-83/2005. A Division Bench of the High Court disposed of the four appeals
by order dated 8.9.2005. The appellate court confirmed the finding of the
learned Single Judge that adequate opportunity had been given to the workmen in
the enquiry. It concurred with the learned Single Judge that the awards of the
Tribunal setting aside their dismissals on the ground that due opportunity was
not given to the workmen, were liable to be set aside.
The appellate court
then examined the contention based on Standing Order 14 (e). The Division Bench
held that Rule 14(e) of the Standing Order imposed a legal obligation upon the
disciplinary authority to secure the approval of the Manager of the
establishment (and in the absence of a Manager, approval of the employer) in
respect of the dismissal; that the appellant had failed to contest the
proceedings before the Tribunal and place any material to show that there was
such prior approval. It was of the view that though the workmen had not raised
such a contention before the Industrial Tribunal, there was no need to remand
the matter to the Tribunal to consider whether 7 prior approval was in fact
obtained before issuance of dismissal orders nor any need to give any
opportunity to the management to place necessary material, having regard to the
fact that the matter was more than a decade old and two of the employees had
already reached the age of superannuation and other two were about to reach the
age of superannuation. The Division Bench therefore upheld the order of the
learned Single Judge.
7.
The
said order is challenged in these appeals by special leave. The question that
arises for consideration is whether the High Court could have permitted the
workmen to raise a contention based on a disputed question of fact for the
first time in the writ proceedings and then decide the same against the
management without giving it an opportunity to let in evidence thereon.
8.
The
appellant contended that the workmen ought not to have been permitted to raise
a new contention alleging non-compliance with Standing Order 14(e) for the
first time before the High Court, thereby denying them an opportunity to
establish that there was no violation of the said Standing Order. The appellant
also contended that in the first three cases, the order of dismissal was signed
by the Director of the appellant company (and by the Manager himself in the
fourth case) and the order clearly stated that the 8 management/Manager had
considered the findings and proceedings of the Enquiry Officer and had accepted
the same. It was contended that a reading of the order clearly showed that the
findings of the enquiry were accepted by the management, which meant the Board
of Directors of the company, which was the employer. It was contended that
Standing Order 14(e) was intended to apply only where the disciplinary
authority was lower in rank to the Manager or the Board of Directors of the
company. The appellant therefore contends that the decision of the High Court
that there was no compliance with Standing Order 14(e) was unwarranted and
erroneous.
9.
Learned
counsel for the workmen, on the other hand, contended that as the appellant
failed to participate in the proceedings before the Tribunal, the contention of
the workmen that due opportunity was not given to them in the domestic enquiry
was rightly accepted. It was also contended that the High Court ought not to
have interfered with such a finding. They supported the ultimate decision
directing reinstatement with back-wages, not only on the ground of
non-compliance with Standing Order 14(e) but also on the ground that the
enquiry was not fair and proper.
10.
The
enquiry report makes it clear that sufficient opportunity was granted to the
workmen to participate in the inquiry and inspite of it, they did not
participate in the enquiry (except Bhupen Lal who participated in the enquiry).
The learned Single Judge after considering the question of due opportunity,
recorded a finding that such opportunity had been given to the workmen and
therefore, set aside the Tribunal's finding in that behalf. That was not
challenged by the workmen, presumably because ultimately the appellant's writ
petition was dismissed on some other ground. The Division Bench also affirmed
the said finding that due opportunity was given to the workmen. In fact the
Division Bench specifically recorded that the workmen did not challenge that
part of the order of the learned Single Judge holding that due opportunity was
given. No ground has been made out to interfere with the concurrent findings of
the learned Single Judge and the Division Bench that the workmen were given due
opportunity. Therefore, the enquiry was fair and proper.
11.
In
regard to the finding that there was no approval by the manager/employer, it is
not in dispute that such a contention was never raised before the Tribunal.
What was urged before the Industrial Tribunal by the workmen was that they were
not given due opportunity to defend themselves and therefore the inquiry was
opposed to principles of natural justice. The workmen did not contend before
the Industrial Tribunal that the order of dismissal was bad for want of
approval of the manager or of the employer under Standing Order 14(e). The issue
of violation of Standing Order 14(e) was raised before the High Court for the
first time and as rightly contended by the learned counsel for the appellant,
the appellant did not have an opportunity to demonstrate that such an approval
was in fact available or that such approval was not required, having regard to
the fact that a decision was taken by the Manager or the Board of Directors,
which was the employer.
Neither the learned
Single Judge nor the Division Bench could have assumed that there was no
approval without giving an opportunity to the appellant to establish that there
was approval. Merely on the ground that the matter was pending for a
considerable time, the Division Bench could not say that there was no need to
remit the matter back to the Tribunal or chose to assume that there was
non-compliance with the requirement of Standing Order 14(e).
12.
We
are of the view that if the High Court felt that the matter need not be
remitted and that it should decide the issue on merits, it ought to have given
due opportunity to the appellant employer to produce before it, relevant
material to establish that it had complied with Standing Order 14(e). That was
11 also not done. Therefore, the finding of the learned Single Judge affirmed
by the Division Bench, holding that there was no approval as required by
Standing Order 14(e), requires to be set aside, as the same is based on no
evidence.
13.
In
the usual course, this would have necessitated referring back the matter to the
Tribunal for examination of the issue relating to compliance with Standing
Order 14(e). But certain subsequent events have necessitated exercise of our
jurisdiction under Article 142 to do complete justice. The orders of
termination in regard to the employees were passed in the years 1990 and 1991.
All the four employees have reached the age of superannuation long ago. There
is therefore no question of any of them being reinstated, even if the matter is
referred to the Tribunal and they succeed before the Tribunal. The High Court has
found that the charges are proved.
Only the technical
contention about approval remains. On the facts and circumstances, we are of
the view that a quietus should be given to this litigation by directing the
appellant to pay one-third of the back-wages (less any amounts already
paid/deposited by the appellant) in full and final settlement, to the four
workmen.
14.
We
therefore allow these appeals, set aside the awards of the Tribunal and the
orders of the learned Single Judge and Division Bench of the High Court. The
orders dismissing the four workmen from service passed by the employer is not
disturbed. Instead, the appellant is directed to pay to the four workmen,
one-third of the back-wages for the period between the respective dates of
dismissal and superannuation (less any amount already paid/deposited). No
costs.
..............................J.
(R V Raveendran)
New
Delhi;
...............................J.
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