Central Coalfields Ltd. vs Presiding Officer and Others

Narendra Nath Tiwari, J.—In this writ petition the petitioner has prayed for quashing the Award dated 28.2.2000 passed by the respondent No. 1 in Reference No. 228 of 1994, whereby the action of the Management in dismissing the concerned workman has been held to be not justified and the concerned workman has been held to be entitled for full back wages, continuity of service and other consequential benefits.

The short fact of the case is that the concerned workman Ratio Oraon was engaged as a coal cutter in Topa Colliery. The said colliery was nationalized under the provisions of Coal Mines Nationalisation Act w.e.f. 31.1.1973. Service of the said workman was, thereafter, regularized and he was appointed as Peon on 25.6.1977. He was then transferred to the C.C.L. headquarters. On getting information that in place of said Ratio Oraon one Thakur Prasad Mahto has been working in the name of Ratio Oraon, a charge sheet was issued to the concerned workman on 2.6.1988. A domestic enquiry was conducted. On the conclusion of domestic enquiry the concerned workman was found guilty and was dismissed on 23.9.1993. The concerned workman, thereafter, raised an industrial dispute. The dispute was referred to the Central Government Industrial Tribunal No. 1, Dhanbad for adjudication. The term of the reference was as follows:

Whether the action of the management of M/s. Central Coalfields Ltd., Headquarters Darbhanga House, Ranchi is justified in dismissing the workman Shri Ratia Oraon, vide their Order No. 2827/P/8384-62 dated 23.9.1993 ? If not, to what relief the workman is entitled?

Before the Tribunal, the Management and the concerned workman appeared and filed their written statements. The concerned workman inter alia stated that the domestic enquiry was not fair and proper and punishment of dismissal was arbitrary. It was further stated that he was working at Topa Colliery in the year 1973, which was later on taken over by the Government of India. After due screening of all the records and antecedents, his service was regularized w.e.f. 5.4.1973. He was, thereafter, appointed as Peon on 25.6.1977 and transferred to C.C.L Headquarters at Ranchi. Since then he had been working at the C.C.L. Headquarters. It has been further stated that he is Ratia Oraon son of Birja Oraon and the charge that one Thakur Prasad Mahto has been working in his name, is wholly baseless. It was further stated that his father died while he was aged about two years. His mother, in that circumstance, had to earn livelihood. He in such condition started working as domestic help in the house of one Chulhan Mahto. The concerned workman was brought up by the said Chulhan Mahto, but he retained the name of his father in school leaving certificate as Birja Oraon. Since he was brought up by Chulhan Mahto, he is his foster father. Everything was verified by the custodian at the time of screening of the records after taking over of the colliery by the Government. He, thereafter, was regularized and transferred to C.C.L. Headquarters at Ranchi. Identity card was issued to him. Ignoring all those admitted documents on record he has been baselessly held guilty of charge of false impersonation. The enquiry was not proper and fair. No legal evidence was brought to prove that he is Thakur Prasad Mahto son of Chulhan Mahto. There is no other person known as Ratia Oraon son of Birja Oraon except him.

The management in the written statement, on the other hand, stated that one Jodhan Mahto made a written complaint that the concerned workman is Thakur Prasad Mahto/son of Chulhan Mahto and he has been working in the name of Ratia Oraon falsely impersonating himself. On the said complaint a preliminary enquiry was conducted by a committee consisted of the three members. The committee was headed by Shri Suresh Prasad, Deputy Chief Personnel Manager (SE) and other two members were Shri P.S. Verma, Senior Security Manager and Shri H. Kujur, Senior Personnel Officer, C.C.L. After holding preliminary enquiry a report was submitted. In the enquiry it was transpired that Thakur Prasad Mahto son of Shri Chulhan Mahto has been working as peon/chain man at C.C.L. Headquarters impersonating himself as Ratia Oraon son of Birja Oraon. On that basis the concerned workman was proceeded against. On conclusion of the domestic enquiry the concerned workman has been held guilty of the charge of impersonating himself as Ratia Oraon and playing fraud on the company. He was awarded punishment of dismissal. The domestic enquiry was fair and proper and there was no illegality in the finding and holding the concerned workman guilty of false impersonation and awarding punishment of his dismissal from service.

The parties led evidences in support of their respective statements. Learned Tribunal after conclusion of the hearing rendered its award in favour of the concerned workman holding the action of the management in dismissing him is not justified and holding him entitled for reinstatement with full back wages and continuance of service with other consequential benefits.

In this writ application, the management-petitioner has sought to assail the impugned award mainly on two grounds:

(i) that there was no infirmity and illegality in the finding of the domestic enquiry. Learned Tribunal has erroneously upset the same and made the award in favour of the workman without any legal basis, and

(ii) that the order for payment of back wages is illegal and unsustainable; the concerned workman has failed to prove that he was not gainfully employed after his dismissal from the services, onus of the same was on him to prove. In absence of any such averment or proof, the order of payment of back wages is unfounded.

Mr. Ananda Sen, learned Counsel appearing on behalf of the petitioner submitted that in the domestic enquiry punishment was awarded on the basis of the materials and evidences on record. Learned Tribunal while deciding preliminary issue by order dated 15.10.1996 had held that the domestic enquiry was fair and proper. But erroneously set aside the order of the domestic enquiry. Learned Counsel further submitted that there is nothing on record to prove that the concerned workman was not gainfully employed after his dismissal. The primary burden was on him to prove. But the same has not been discharged by him. Learned Counsel referred to and relied on the decision of the Supreme Court in Talwara Cooperative Credit and Service Society Limited v. Sushil Kumar reported in (2008) 9 Scc 486. In absence of any such proof Learned Tribunal had no basis to award full back wages to the workman. The impugned award is, thus, vitiated and liable to be set aside.

Learned Counsel appearing on behalf of the writ petitioner submitted that learned Tribunal has clearly held that the finding of the domestic court is arbitrary and based on no legal evidence. The finding was recorded on the basis of the report of the officers of C.C.L., who were not competent, they had no special source of knowledge to come to the conclusion that Ratia Oraon was not the employee and in fact one Thakur Prasad Mahto has been working impersonating himself as Ratia Oraon.

Learned Tribunal on thorough discussion of facts, materials and principle of law, has come to the finding that there is no such evidence to prove the charge against the concerned workman and that the finding of the domestic enquiry was wholly perverse and illegal. Learned Counsel further submitted that it is to the knowledge of the management that the concerned workman was not gainfully employed. There is nothing on record to show that after dismissal he has been earning his livelihood anywhere else. It has been submitted that matter of giving direction for payment of back wages is a matter of judicial discretion based on the facts and circumstances of the case and the said discretion has been duly exercised by learned Tribunal considering the illegal dismissal and ousting of the concerned workman from his employment.

I have heard learned Counsel for the parties and considered the facts and materials on record, I find that the learned (sic) thoroughly discussed the facts and evidences on record (sic) come to the finding that the concerned workman has been (sic) as Ratia Oraon since before the nationalization of the coal (sic) after taking over the colliery by the C.C.L., the custodian had duly scrutinized the records and thereafter regularized the services of the concerned workman. He was appointed as Peon and was transferred to the Headquarter, C.C.L., Ranchi. Identity card was issued to him in the name of Ratia Oraon. He had been working as such for more than 15 years. Jodhan Mahto, on whose complaint enquiry was said to be initiated, was not examined by the management in domestic enquiry. The Management also did not examine any villager, Mukhiya, Sarpanch, Chowkidar of the village, who would have been the best persons to prove the identify of Ratia Oraon. There was no legal material before the domestic enquiry to hold the concerned workman guilty of misconduct of impersonation or fraud and the finding of domestic enquiry was not at all justified.

The impugned award is well discussed and based on reasons, so far as holding the management guilty in dismissing the concerned workman is concerned. However, I find no sound basis for awarding full back wages to the concerned workman.

It has been held by the Apex Court in General Manager, Haryana Roadways Vs. Rudhan Singh, that there is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service is in violation of Section 25F of the Act, entire back wages would be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. In U.P.S.R.T.C. Ltd. Vs. Sarada Prasad Misra and Another, it has been held that no precise formula can be adopted nor ''cast-iron rule'' can be laid down as to when payment of full back wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order. In Talwara Cooperative Credit and Service Society Limited (supra) the Apex Court, in view of the earlier proceedings, held that the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Evidence Act, the burden would be on the workman. The burden, however is a negative one. If the same is discharged by the workman, the onus of proof would shift on to the employer to show that the employee concerned was in fact gainfully employed.

In the instant case the Tribunal has awarded full back wages, but has not recorded the basis for granting the same. I find that the concerned workman has not made out a specific ground that he was not gainfully employed after his dismissal from service. Faced with that situation, in course of hearing of this petition, learned Counsel appearing on behalf of the concerned workman shows his willingness even to accept half back wages.

In that view without going into other factors for deciding the quantum of wages, in my opinion, interest of justice may be served, if the petitioner is allowed half back wages in stead of full back wages as amended by learned Tribunal.

In the result this writ petition is partly allowed and the award is modified to the extent that the concerned workman shall be entitled to half back wages. Other terms of the impugned award stands undistributed and upheld.

There is no order as to cost.