Bindeshwari Singh vs Central Government Industrial Tribunal-cum-Labour Court and Another

Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 19-11-1998 (Annexure - P/1) passed by the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur (for short "the Tribunal"), in case No. CGIT/LC/R/247/89, wherein the Tribunal after holding that the departmental enquiry was illegal, examined the witnesses adduced by the parties afresh permitting cross-examination also, came to the conclusion that the order of dismissal was legal, requiring no interference. The facts, in brief, are that the petitioner was working as Mazdoor Category-I with respondent No. 2 colliery. The petitioner was served with a charge sheet on 19/20-4-1987 holding that "it has been reported by Shri S.K. Saxena, Manager, NCPH Colliery that on 19th April, 1987 at 11.00 a.m. while he was passing from Bus Stand, Bhaisa Dafai to NCPH Guest House on main PWD Road in company vehicle No. CIL 9728 with Driver Shri Ayodhya Prasad and when the jeep reached few metres short of turning towards NCPH Guest House, you were found standing with a gun and you fired at Shri Saxena just while the jeep was crossing you. You shot at Shri Saxena with intention to kill him. The above act constitutes a serious misconduct as per the Certified Standing Orders by which you are governed u/s 17(1)(r), which provides for threatening, abusing or assaulting any superior or co-workers."

The departmental enquiry was concluded and in the said enquiry, the charges were found proved. Accordingly, the punishment of dismissal from service was imposed by order dated 22-1-1988 (Annexure - P/3).

The petitioner was charged for criminal offence also under the provisions of Section 307 of the Indian Penal Code before the criminal Court. After conclusion of the trial, the trial Court convicted the petitioner for commission of offence u/s 307 of the IPC and sentenced him to undergo rigorous imprisonment for 7 years. There against, an appeal, being criminal appeal No. 407/1989, was filed by the petitioner wherein the sentence imposed thereon was suspended. Subsequently, by judgment dated 1-9-1997 the Cr. A. No. 407/1989 was partly allowed and the conviction u/s 307 of the IPC was set aside instead the petitioner was convicted u/s 307 of the IPC. It was further directed that the petitioner shall be released on probation on executing a bond of Rs. 10,000/- for good behaviour for two years.

Against the dismissal from service a dispute was referred to the Tribunal on the following question:

Whether the action of the Management of Duman Hill Group of Mines of SECL in dismissing services of their workman Shri Bindeswari Singh, S/o. Shri Bhura Singh, is legal and justified ? If not, to what relief the workman concerned is entitled ?

The Tribunal, having held that the enquiry was defective, examined the witnesses and permitted the petitioner to cross-examine the witnesses produced by the employer, came to the conclusion that the charge leveled against the petitioner was proved and, as such, upheld the order of dismissal passed by the employer. Accordingly, by order dated 19-11-1998 dismissed the reference dated 4-12-1989 made by the Department of Labour, Government of India, New Delhi.

The petitioner further challenges the finding of the Tribunal on the ground that the alleged offence does not constitute misconduct. The enquiry, based on the conviction by the criminal Court, was not just and proper. Since the sentence was suspended, the disciplinary authority could not have been acted upon the enquiry report. The punishment is extremely disproportionate, harsh and excessive.

The petitioner does not question the jurisdiction of the Tribunal in respect of examination of the evidence after declaring the enquiry as illegal, in his pleadings, however, in the oral submission, learned counsel appearing for the petitioner raised the issue as the major contention giving up other challenges, which he had raised in the pleadings.

Shri Tiwari, learned counsel appearing for the petitioner, would submit that under the proviso to Section 11A of the Industrial Disputes Act, 1947 (for short "the Act, 1947"), the Tribunal is prohibited from taking any fresh evidence either for satisfying itself regarding the misconduct or for altering the punishment. The Tribunal may reappreciate the evidence, but recording of fresh evidence, when enquiry has been held as illegal, is not permissible. It is further argued that once the enquiry has been held as illegal, no further enquiry can be held without issuing a fresh charge sheet. Learned counsel placed reliance upon the decision of the Supreme Court in Chairman-Cum-M.D., Coal India Ltd. and Others Vs. Ananta Saha and Others, .

On the other hand, Shri Deshmukh, learned counsel appearing for the respondent No. 2, would submit that the disciplinary enquiry was not based on the conviction of the petitioner alone, but on the charge of misconduct also committed by the petitioner. The criminal trial as well as disciplinary enquiry both are different and distinct. Shri Deshmukh would further submit that in the case on hand, the petitioner has already been convicted and after holding proper enquiry even the Tribunal has found that he has committed misconduct under the provisions of the Standing Order. The Tribunal was justified, even after finding the enquiry defective or illegal, to afford opportunity of hearing to both the parties to adduce evidence by examining, cross-examining the witnesses by the parties.

Heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

Clause 24 of the Standing Orders deals with the termination of employment by the company. Clause 26 deals with the acts of misconduct. Clauses 26.4, 26.8 & 26.18 read as under:

26.4 Gambling, drunkenness, fighting or riotous disorderly or indecent behaviour either at his place of work or at the colliery/establishment or company''s residential settlements.

26.8 Conviction in any court of law for any criminal offence involving moral turpitude.

26.18 Assault, attempt to assault, threatening to assault, abuse, a co-worker or subordinate or superior while on duty or otherwise in connection with employment.

Thus, the above-stated act of the petitioner comes within the purview of ''misconduct'', as defined in the Standing Order.

No doubt the conduct of the petitioner, which was a subject matter of the enquiry as well as before the Tribunal, constituted an act of misconduct, which has been defined, as aforestated, in the Standing Order.

Section 11A of the Act, 1947 confers power on the Labour Courts, Tribunals and National Tribunals to give proper relief in case of discharge or dismissal of workman.

Section 11A of the Act, 1947 reads as under:

11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. --Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:

Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.

On bare perusal of the aforesaid provisions, it appears that the Labour Court, Tribunal or National Tribunal may reexamine the witnesses and documents, however, only relying on the materials on record, but not permitted to take any fresh evidence in relation to the matter.

Various High Courts interpreted Section 11A of the Act, 1947 in a different way. The Supreme Court in The The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, and other connected matters for the first time considered the effect and applicability of Section 11A of the Act, 1947 and held as under:

48-49. The Proviso specifies matters which the Tribunal shall take into account as also matters which it shall not. The expression ''materials on record, occurring in the Proviso, in our opinion, cannot be confined only to the materials which were available at the domestic enquiry. On the other hand, the ''materials on record'' in the Proviso must be held to refer to materials on record before the Tribunal. They take in-

(1) the evidence taken by the management at the enquiry and the proceedings of the enquiry, or

(2) the above evidence and in addition, any further evidence led before the Tribunal, or

(3) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workman contra.

The above items by and large should be considered to be the ''materials on record'' as specified in the Proviso. We are not inclined to limit that expression as meaning only that material that has been placed in a domestic enquiry. The proviso only confines the Tribunal to the materials on record before it as specified above, when considering the justification or otherwise of the order of discharge or dismissal. It is only on the basis of those materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct justifies the punishment of dismissal or discharge. It also prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the misconduct or for altering the punishment from the Proviso it is not certainly possible to come to the conclusion that when once it is held that an enquiry has not been held or is found to be defective, an order reinstating the workman will have to be made by the Tribunal. Nor does it follow that the Proviso deprives an employer of his right to adduce evidence for the first time before the Tribunal. The expression ''fresh evidence'' has to be read in the context in which it appears, namely, as distinguished from the expression materials on record. If so read, the proviso does not present any difficulty at all.

The principle of law as laid down, ibid, has been referred with approval subsequently in Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others, and Neeta Kaplish Vs. Presiding Officer, Labour Court and Another,

Reliance of the petitioner in Tata Oil Mills Co. Ltd. Vs. Its Workmen, , is misplaced, as the issue involved was not on the interpretation of Section 11A of the Act, 1947, as Section 11A, ibid, was inserted by Act 45 of 1971, sec. 3 (w.e.f. 15-12-1971).

In Ruston and Hornsby (I) Ltd. Vs. T.B. Kadam, the provisions of Section 11A of the Act, 1947 was not under consideration, wherein it was held that when a workmen is dismissed as a result of domestic enquiry, the only power which the Labour Court has, is to consider whether enquiry was proper and if it was so, no further question arises. If the enquiry was not proper, the employer and the employee had to be given an opportunity to examine their witnesses.

In the case on hand, as explained by the Supreme Court in The Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. (supra), the Tribunal has not considered fresh evidence, which were material on record. ''Material on record'' means the documentary evidence, which were available with the employer. Even if the same has not been produced before the enquiry officer and the material was available on record, the same could be examined by the Tribunal under the provisions of Section 11A of the Act, 1947. In the case on hand, the Tribunal has not examined any documentary evidence on record on the basis of fresh material, but has examined the witnesses based on material, that is not permissible under proviso to Section 11A of the Act, 1947.

The term "evidence" is defined in the Blacks Law Dictionary, 9th Edition as something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact. The term ''witness'' has been defined as one who sees, knows or vouches for something, one who gives testimony under oath or affirmation. The testimony on record that may be examined a fresh but the witnesses cannot be held as material on record for the purpose of examination under the relevant provisions of law.

Reliance of the petitioner in Ananta Saha (supra), is not relevant in the facts of the present case, as the issue under consideration before the Supreme Court in Ananta Saha (supra) was not on interpretation of Section 11A of the Act, 1947.

In the present case, the enquiry report was found defective and illegal. The Tribunal has altered the decision on examining the witnesses, not evidences on the basis of ''material on record'' of the employer. Thus, the impugned order passed by the Tribunal is vitiated.

The contention of the petitioner that he was acquitted in the criminal case is factually incorrect. In the appellate Court, the conviction of the petitioner was converted from offence u/s 307 to that of u/s 337 of the IPC, but it does not mean that he was acquitted. He was released on probation. Even otherwise, the departmental proceedings as well as the criminal trial stand on different footing.

Conviction in a criminal trial depends on a strict proof and the benefit of doubt is always given in favour of the accused, however, departmental proceedings does not depend on strict proof but on probabilities also having regard to the fact that whether the employee deserves to be continued in service after having committed misconduct as defined under the statute.

For the reasons mentioned hereinabove and applying the well settled principles of law, the impugned order dated 19-11-1998 (Annexure - P/1) passed by the Tribunal is quashed. It is ordered that the petitioner be reinstated in service with all consequential benefits. As a sequel, the wit petition is allowed with costs quantified to be at Rs. 5,000/- payable to the petitioner within a period of six weeks.