Employers in relation to the Management of Sudamdih Shaft Mine vs Shakuntala Devi

S. Chandrashekhar, J.�Seeking quashing of award dated 19.10.2009 in Reference No. 82 of 1998 whereby the dismissal of the workman/respondent has been held illegal and not justified and hence he is entitled to full back wages from the date of dismissal till his retirement/death, the petitioner-employers in relation to the Management of Sudamdih Shaft Mine under Eastern Jharia Area of M/s. Bharat Coking Coal Ltd. has preferred the present writ petition.

The brief facts of the case are that, on 16/18.9.1995 a charge-sheet for commission of various acts of misconduct viz. negligence of duty, fraud, dishonesty and willful damage to work in progress etc. was issued to the workman/respondent. Since the explanation of the workman was not found satisfactory, a departmental enquiry was initiated in which other workmen namely, Shri D. Pandey, Shri Ram Pravin Singh and Shri Amal Sarkar, against whom identical charges were levelled, were also included. In the departmental enquiry, the Management examined one PN. Singh as MW-1 and one I. Ghosh as MW-2. The Management witness namely, PN. Singh deposed that on 14.7.1995, the then Chief of Security, BCCL inspected Sudamdih area Check Post, Security Post, Weighbridge, etc. and he seized five registers from the Inclined Mine Check Post of coal transport in which the details of coal transportation for the months of March and April, 1995 were registered. The Chief of Security submitted his report stating that several irregularities in coal transportation during different periods were noticed. The Chief of Security had seized six challans which bear signature of Shri S.N. Sah. Shri I. Ghosh, MW-2 deposed that he cross-checked the challans with the CISF Check Posts and noticed irregularities. The charged workmen made a request that their signatures should be examined by the experts as they denied that they signed the challans. It was claimed that someone else had forged their signatures on the challans and therefore, they requested for verification of their actual signatures. The enquiry officer vide enquiry report dated 9.4.1996 found the charge of neglect of work/simple carelessness of duty proved against the workman/respondent namely, S.N. Sah, due to the system failure. The charges against other charge-sheeted workmen were not found proved. A second show-cause notice alongwith the copy of the enquiry report was given to the workmen on 30.6.1996 and vide order dated 5.8.1996, the respondent-workman was dismissed from the service. The respondent-workman raised a dispute and after the failure of the conciliation, the Appropriate Government vide order dated 10.9.1998 referred the dispute for adjudication. Before the Tribunal, the enquiry officer was examined as MW-1 and the entire enquiry proceeding was marked as Ext. M-2. The respondent-workman examined himself as WW-1 and his two sons were examined as WW-2 and WW-3 and they deposed that their father died on 13.8.2002. The Industrial Tribunal delivered award on 19.10.2009 in Reference No. 82 of 1998.

Heard Counsel for the petitioner. Counsel for the respondent is absent.

Shri A.K. Mehta, the learned Counsel for the petitioner submitted that once it is found that the domestic enquiry was fair and proper, and it was conducted following the rules of natural justice, the Tribunal should not interfere with the findings recorded by the enquiry officer. It is further contended that under section 11-A of the Industrial Disputes Act, 1947, the Labour Court/Tribunal cannot re-appraise the evidence as the Tribunal does not sit in appeal on the findings of the enquiry officer. Though the concerned workman died on 13.8.2002, no step was taken for substitution of the legal heirs. It is thus contended that no proceeding at the instance of a dead person can proceed and, the proceeding before the Tribunal stood abated. It is further submitted that the Tribunal committed a serious error while recording that though the order of dismissal was passed on 29.7.1996, the show-cause notice was given on 30.7.1996. The learned Counsel relied on decision in Employers Management West Bokaro Colliery of TISCO Ltd. Vs. Concerned Workman, Ram Pravesh Singh, , and in "Usha Breco Mazdoor Sangh v. Management of Usha Breco Limited and another 2008 (118) FLR 400 (SC),"

I have carefully considered the submission of the Counsel for the petitioner and perused the documents on record.

A perusal of the enquiry report, a copy of which has been tendered in Court by the Counsel for the petitioner, indicates that the enquiry officer has recorded that the charge-sheet was vague because the actual date, time and place of alleged occurrence were not mentioned. The signature on the back of challans marked as Ext. 10 records S.N. Shaw as the name of the Guard whereas, the name of the delinquent workman is S.N. Sah. The enquiry report also records that the signature of S.N. Sah is different from the signature on the challan. The duty chart, Ext. 11 indicates that the workman was posted at Inclined Check Post only on 16.3.1995 and on other dates he was not posted there. It is also an admitted position that the workman in his show-cause explanation submitted that his signature be examined and compared by an expert. In course of the domestic enquiry also, the workman made such a request for examination of his signature by expert however, the Management did not produce expert''s opinion. The enquiry officer concluded that only a part of Clause 26.1.2 of the Certified Standing Orders has been found proved against the workman. The learned Industrial Tribunal has noticed that though the Enquiry Officer had recommended punishment of stoppage of two increments with cumulative effect, an order of dismissal from service was passed. I find that, a bare reading of the impugned award does not disclose that the Industrial Tribunal has re-appreciated the evidence led during the domestic enquiry.

The respondent-workman has taken a specific plea that when the news of multi-crore coal scam by the BCCL officials in collusion with the Transport Contractor-M/s. Arihant Transport Company was published in the newspaper, the General Manager, Sudamdih area got the Security Guards charge-sheeted. Though the respondent-workman and other security guards would have been competent witnesses to unearth the scam, they were maliciously proceeded against in the domestic enquiry. A specific plea of violation of principles of natural justice has also been taken by the respondent-workman. Insofar as, the contention that the Tribunal would not have jurisdiction to re-appreciate the evidence recorded during the domestic enquiry is concerned, I find that the labour Court has not re-appreciated the material collected during the domestic enquiry. Moreover, the facts disclosed in the present proceeding unerringly indicate that the principle of natural justice was not followed during the departmental proceeding. It is well settled that a departmental proceeding concludes only after the order is passed by the disciplinary authority and not on the submission of the enquiry report. It is an admitted position that a second show-cause notice was issued to the petitioner on 30.6.1996 in which, only three days'' time was given to the respondent-workman for submitting his reply. This was apparently in violation of the rules of natural justice. It cannot be said that the respondent-workman was afforded sufficient opportunity to submit his reply. The learned Counsel for the petitioner submitted that though second show-cause notice was issued on 30.6.1996, the order of dismissal was passed on 5.8.1996 and therefore, the respondent-workman was afforded sufficient opportunity to defend himself. I am unable to accept the submission of the Counsel for the petitioner for the reason that the date on which the order of, dismissal has been passed would not extend the period indicated in the second show-cause notice, for submitting reply by the delinquent workman. There is another reason to conclude that the order of dismissal has been passed in violation of the rules of natural justice. As noticed above, the enquiry officer has found only a part of charge under Clause 26.1.2 of the Certified Standing Orders proved and recommended punishment of stoppage of two increments. Before differing from the findings recorded by the enquiry officer, the disciplinary authority was required to give a show-cause notice which admittedly has not been issued to the delinquent employee.

Referring to the contention that after the death of the respondent-workman on 13.8.2002, in absence of substitution of his legal heirs, the proceeding before the Tribunal could not have been continued, I find that even though the respondent-employee died during the proceeding before the Industrial Tribunal, right to sue survived. During the proceeding the son of the workman who was examined as WW-2 has stated that his father died on 13.8.2002 and thus, the said fact was within the knowledge of the Industrial Tribunal and this is the reason, in the award full back wages has been awarded from the date of dismissal till the death of the workman. In the present proceeding, the petitioner itself has arrayed the wife of the deceased workman as respondent. In Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, ," it has been held that, "it is not every error either of law or fact which can be corrected by a superior Court. Mere formal or technical error even though of law, would not be sufficient to attract the extraordinary jurisdiction of High Court of Certiorari".

In view of the aforesaid discussion, I find no merit in the writ petition and accordingly, it is dismissed. The petitioner is directed to implement the award within a period of eight weeks. Let a copy of the order be communicated to the respondent.