Full Judgment Text
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CASE NO.:
Appeal (civil) 2194 of 2001
PETITIONER:
Management of Krishnakali Tea Estate
RESPONDENT:
Akhil Bharatiya Chah Mazdoor Sangh & Anr.
DATE OF JUDGMENT: 10/09/2004
BENCH:
N. Santosh Hegde,S.B. Sinha & A.K. Mathur
JUDGMENT:
JUDGMENT
Santosh Hegde, J.
This appeal by leave of this Court is preferred against
judgment and order dated 8th of February 2000 made by the
Gauhati High Court in Writ Appeal No. 519 of 1997 confirming
an order of the learned Single Judge of the same court in Civil
Rule No.1485 of 1992 dated 19th July 1997. The original writ
petition was filed by the first respondent herein against an
award made by the Labour Court dated 21st of August 1991
which award upheld the decision of the appellant-management
to dismiss the concerned workmen on the ground of proved
misconduct.
Facts necessary for the disposal of this appeal are as
follows:
Concerned workmen who are represented by the first
respondent herein were in the employment of the appellant-
management which was managing a Tea Estate. It is the case
of the management that in pursuance to a demand for bonus of
20% made by the workmen which was not acceded to by the
management, certain workers came in a mob on the night of
12th-13th of October 1980 to the bungalow of Manager of the
Tea Estate, armed with lethal weapons such as lathis, bows and
arrows and axes and they gheraoed the Manager and others and
by threat demanded bonus at the rate of 20% as against 8.33%
offered by the management. The gherao according to the
management continued till 3.00 AM on 13.10.1980. It is also
alleged that on being informed, the police, Bilasipara arrived at
the Estate but the mob consisting the workmen became violent
and damaged the bungalow and other property of the Estate. It
is also alleged that during the wrongful confinement of the
Manager, he was compelled to sign a document, agreeing to
pay 20% bonus. It is based on the above allegations, a
domestic enquiry was instituted against the concerned workmen
and after the enquiry, on the report of the Enquiry Officer, the
workmen concerned were dismissed from service. Pursuant to
the said decision, an application under Section 33 (2)(b) of the
Industrial Disputes Act (for short, ‘the Act’) seeking approval
of the Labour Court of the action of the management in
dismissing the concerned workmen was filed. The Labour
Court at Gauhati approved the action of the management in
dismissing the concerned workmen on 30th July 1983.
Nearly 7 years after the order of dismissal i.e. on
4.3.1987 a reference under Section 10 of the Act was made by
the concerned Government referring a dispute to adjudication to
the Industrial Tribunal, Assam (Labour Court). The said
dispute pertained to the justification of the order of the
management in dismissing the concerned workmen as also to
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the question of entitlement of the workmen for re-instatement
with full back wages in the event of the Labour Court coming
to the conclusion that the dismissal was not justified.
On receipt of the Govt. notification the Labour Court
issued notices to the parties calling upon them to file written
statement and documents on which they intended to rely.
Accordingly, the parties filed their written statement and
documents.
The case of the management before the Labour Court
also, as stated above, is that on the night of 12th and 13th
October 1980 the workmen concerned along with others came
to the Estate, armed with deadly weapons and confined the
Manager and others from 8.30 PM to 3.00 AM next morning
and it is only after the manager gave it in writing under threat
as assurance that 20% bonus would be paid, the gherao was
lifted. Management also stated that these workman caused
damage to the property of the estate.
Workmen in their written statement contended that on the
night of 12.10.1980 the Manager of the Estate by name Shri
D.K. Ghosh and one Shri Ratan Babu met some of the workers
including one Benja Lohar being armed with guns. It is stated
that the Manager on seeing the workmen got furious and hit
Benja with the butt of his gun on the left side of his head and
Ratan Babu hit the other workmen by name Suko on her right
hand, Benja fell unconscious and on hearing the scream of
Suko other workmen came to the aid of the injured workmen
and they took them to the garden seeking first aid to the said
injured persons. It is further contended that police personnel
guarding the Manager’s bungalow allowed the workmen to
enter because of the injuries suffered by Benja and all the
workmen only wanted treatment of the said Benja and the other
injured co-worker. They contended that they were not armed
with any lethal weapons nor did they create any untoward
incident. It is due to ulterior motive with a view to get rid of
the workmen who were not to the liking of the manager, the
management had initiated the domestic enquiry. They also
contended that no opportunity was given to the workmen to
produce evidence or to defend themselves in the domestic
enquiry. They denied that they ever damaged the property of
the Estate or illegally confined the Manager and others inside
the Manager’s bungalow. They contend that the enquiries by
the domestic tribunal was vindictive, capricious.
The Labour Court while considering the preliminary
issue "whether the domestic enquiry was fair and proper" held
that the same was not fair and proper, therefore parties were
given opportunities to produce evidence on merits. Labour
Court also noted the fact that the charge framed against the
workmen in the enquiry was that:-
"on 12th and 13.10.1980 you entered
inside the Manager’s bungalow from 8.30
PM to 3.00 AM with lethal weapons in
hand along with others in the riotous
manner and damaged company’s
property and illegally confined the
Manager and others inside the Manager’s
bungalow".
It is relevant to mention at this stage that in regard to the
incident which was the subject-matter of the domestic enquiry,
the police had initiated criminal proceedings and in the said
proceedings the accused persons were acquitted for lack of
evidence.
The Labour Court after considering the material
produced by the parties came to the conclusion that the
allegations of wrongful confinement and extortion of
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documents stood proved and the defence of the workmen that
the Manager had assaulted the workers Benja and Suko
consequent to which a group of workmen entered the Estate to
provide treatment to them was not accepted. The Labour Court
also noticed the fact that out of the 29 dismissed workmen,
some had settled the dispute with the management and have
accepted the compensation offered by the management and
had left the services of the management while others who did
not accept the settlement were alone proceeded against. The
Court also took note of the fact that the criminal case filed as
against some of the workmen in the criminal court, ended in
acquittal but held that the order of the criminal court had no
bearing on the case before it, hence based on the material
produced it upheld the dismissal of the workmen and rejected
the prayer of the workmen for reinstatement with full back
wages.
Being aggrieved by the said award of the Labour court,
the workmen-Union, the first respondent herein preferred a
writ petition before a learned Single Judge of the Gauhati High
Court who after hearing the parties came to the conclusion that
the finding of the Labour Court that there was extortion of
documents by the workmen concerned was contrary to the
chargesheet which did not contain such an allegation. It came
to the conclusion that allegation of extortion was an
afterthought. It also accepted the defence of the workmen that
they entered the Estate only to obtain treatment of the injured
workmen who was assaulted by the Manager of the Estate. It
also held that the Labour Court did not apply its mind to the
vital facts and circumstances of the case as alleged by the
learned counsel for the workmen who appeared in the said writ
petition. On that basis the learned Single Judge came to the
conclusion that the Labour court did not appreciate the material
on record properly and passed the order justifying the
dismissal which is disproportionate to the offence alleged. It
also held that the workmen who were tried before the criminal
court were honorably acquitted by the criminal court and the
departmental enquiry held by the management was faulty. On
the said basis it set aside the award and directed the
management to (i) reinstate the surviving workmen who have
not attained the age of superannuation with compensation of
Rs.15,000/- to each of them in lieu of back wages; (ii) to pay
compensation of Rs.30,000/- to each of the workers who have
superannuated during the pendency of the proceedings upto
that Court and (iii) to fix lump sum compensation in
consultation with the petitioner -Union which shall be paid to
the actual heir (wife) of the workmen who expired without
getting any benefit. It directed the management to pay the said
compensation within six weeks from the receipt of its
judgment.
An appeal filed against the said judgment and order of
the learned Single Judge before the Division Bench of the same
Court came to be dismissed. The Appeal Bench held that the
Labour Court could not have gone beyond the charge originally
framed by the management in the domestic enquiry. Therefore,
its finding in regard to the charge of extortion was
unsustainable in law. It also came to the conclusion that there
was a duty on the part of the Labour Court to have taken into
consideration the findings and the facts recorded in the criminal
court which not having been done, the award could not be
sustained. It upheld the learned Single Judge’s conclusion that
the punishment of the dismissal of the workmen was
disproportionate to the offence actually alleged against the
workmen. It is on that basis the appeal came to be dismissed.
As stated above, it is against the said judgment of the
High Court the appellant management is before us in this
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appeal.
Shri K. R. Choudhary, learned senior counsel addressing
arguments on behalf of the appellant contended that the Labour
Court having permitted the parties to adduce evidence in
justification or otherwise of the finding of the domestic tribunal
and having recorded evidence in this regard justly came to the
conclusion that the management has established its case of
misconduct against the workmen. He also contended that the
finding in regard to the extortion of the documents was not
actually a new charge but was in fact a part of the charge which
referred to the wrongful confinement of the Manager and there
being sufficient material before the Labour Court, both in
regard to the long and wrongful confinement of the Manager
and other officials of the Estate as also in regard to the forceful
extortion of a document agreeing to pay 20% bonus, the Labour
Court was justified in coming to the conclusion that the
workmen were also guilty of the said charge of extortion. He
also contended, assuming for the argument sake that the Labour
Court could not have gone into the question of extortion of the
document, the original charge as framed by the domestic
enquiry having clearly stated about the wrongful confinement
of the Manager and others and the damage caused to the
property of the Estate by a riotous mob of workmen, carrying
deadly weapons, itself was sufficient to justify the punishment
of dismissal. He submitted that the finding and evidence
recorded by the criminal court not binding on the labour court,
there was no obligation on the part of the labour court to have
considered the evidence led in the said trial. At any rate, he
submitted that the Labour Court had taken cognizance of the
fact that there was a criminal case which came to be ended in an
acquittal. He pointed out that the observations of the learned
Single Judge that the acquittal of the workmen by the criminal
court was "honorable acquittal", is wholly erroneous. He also
submitted that on facts and circumstances of the case it is
established that the workmen have indulged in a serious
unlawful act which justified the punishment of dismissal. In
support of his arguments, learned counsel has relied on a
judgment of this Court in State of Rajasthan versus B.K.
Meena and others [1996 (6) S.C.C. 417].
Shri D.K. Aggarwal, learned senior counsel appearing for
the respondent-Union contended that the finding of the Labour
Court having gone beyond the charge framed by the
management against the workmen in regard to the allegations of
extortion, the same was justly reversed by the High Court. He
placed reliance in support of this contention on the judgment of
this Court in the case of The Workmen of M/s. Firestone
Tyre & Rubber Co. of India (Pvt.) Ltd. etc. etc. versus
The Management & Ors. 1973 (1) LLJ 278. He next
contended that the Labour Court ought not to have brushed
aside the finding of the criminal court and it was duty bound to
have considered the same while appreciating the evidence
adduced in the proceedings before it. In support of this
contention, the learned counsel relied upon a judgment of this
Court in the case of Capt. M. Paul Anthony versus Bharat
Gold Mines Ltd. and another AIR 1999 SC 1416. He then
contended that assuming for argument sake that the workmen
did indulge in some sort of gherao, since there is no evidence as
to specific overt act assigned to the dismissed workmen, the
punishment of dismissal was totally disproportionate to the
misconduct alleged. He relied on a judgment of this court in
the case of M/s. Burn & Co. Limited versus Their workmen
and others AIR 1959 SC 529.
Bearing in mind the arguments addressed before us and
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findings of the High Court, we will now consider the various
arguments addressed before us in this appeal. In that process
we will first take up the contention of the respondent that the
finding of the Labour Court is vitiated by the fact that it took
into consideration a misconduct which was not part of the
charge memo issued to the workmen, and the Labour Court
went beyond the charges framed therefore the conclusion of the
Labour court as to justification of the punishment is vitiated
by irrelevant consideration, and the High Court was justified in
interfering with the said finding.
It is true in the charge memo issued to the concerned
workmen extortion was not shown as one of the acts of
misconduct. The original charge memo contained the following
charge:
" (1) On 12.10.80/13.10.80 you
entered inside the Manager’s
bungalow from 8.30 PM to 3.00 AM
with lethal weapons in hand along with
others in a riotous manner and
damaged company’s property and
illegally confined Manager and others
inside the Manager’s bungalow. You
also used abusive language.
(2) This if proved is an offence
under standing orders 10(a)(7),
10(a)(8) and 10(a) 11 in force on
this Estate"
The Labour Court in its award on a preliminary point
held that the enquiry conducted by the management was not a
proper enquiry hence based on the requests made in the
statement filed before it, permitted the management to adduce
evidence in support of its charge in the proceedings before it
and also permitted the workmen to adduce evidence in defence.
In the course of the evidence adduced by the parties a specific
allegation that the workmen demanded a promise in writing
from the Manager of the Estate to give 20% bonus was in fact
made and that on police officer having informed that it will not
be possible to control the situation unless such a promise was
given by the Manager in writing a document to the effect was
given by the Manager under threat and that only after receipt of
the said document workers dispersed, at about 3.00 AM on 13th
October 1980, was made. The Labour Court having considered
the evidence led by the Management in this regard as also the
counter evidence led by the workmen came to the conclusion
that such an extortion of letter under threat was actually
obtained.
Learned counsel appearing for the respondent-workmen,
relied upon the judgment of this Court in Laxmi Devi Sugar
Mills Ltd. versus Nand Kishore Singh [1956 Vol.II LLJ 439]
wherein it was held:
"But in view of the fact that the concerned
workman was chargesheeted only for
instigating his fellow-workmen to demand
for removal of the general manager and not
for any other act of insubordination, the
management could not be permitted to
dismiss him\005..The prayer of the
management for permission to dismiss such
workmen could not be allowed to be
justified on any grounds or charges other
than those mentioned in the chargesheet.
The concerned workman not having been
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charged with the act of insubordination
which could have really justified the
management in dismissing him, the
employer could not take advantage of the
same even though those acts could be
brought home to him in proper
proceedings."
Based on the above decision of this Court in the said
case, an argument is addressed on behalf of the respondent-
workmen that the Labour Court could not have justified the
dismissal of the workmen on the basis of an allegation of
extortion which was not a part of the charges framed.
It is to be noted herein that in the instant case in the
statements filed by the management before the Labour Court,
act of extortion was mentioned as one of the facts leading to
misconduct which was supported by the evidence led by the
management before the Labour Court. Though no specific
charge/issue was framed in this regard against the concerned
workmen but the workmen in their statement had denied the
same. Therefore, the parties were well aware that the extortion
of a letter promising 20% bonus from the Manager was one of
the facts in the chain of events involved in the incident of 12th
and 13th of October 1980. The Labour Court found, among
other facts, this fact of extortion as also having been proved.
The question then is: can a finding of justification of a
punishment awarded by the management based on an additional
fact though proved by evidence but not mentioned in the charge
can be maintained. It is well-settled that Rules of Procedure
found in the Code of Criminal Procedure are not strictly
applicable to the proceedings before the Labour Court but the
Labour Court can always rely on legal principles found in the
provisions of the Code to modulate its procedure. Section 215
of the Code of Criminal Procedure reads thus :
"215. Effect of errors.\027No error in stating
either the offence or the particulars required
to be stated in the charge, and no omission
to state the offence or those particulars, shall
be regarded at any stage of the case as
material, unless the accused was in fact
misled by such error or omission, and it has
occasioned a failure of justice."
From the above, it is seen that even in a criminal trial if
there are omissions to state a particular offence in the charge,
that by itself does not occasion a failure of justice unless the
accused satisfies the court that by such omission he was in fact
misled and the same has occasioned a failure of justice. In the
instant case, as noted above, in the statements filed by the
Management before the Labour Court, this act of extortion is
specifically alleged and in the reply statement of the workmen,
the same is specifically denied and parties have led evidence in
regard to their respective cases on the question of extortion,
therefore, it cannot be said that the workmen were misled by the
omission to mention the charge of extortion. Having joined
issue on this question of fact, they cannot also plead that they
have been in any manner prejudiced by the said omission or
misled by such omission nor can they contend that the said
omission has occasioned a failure of justice.
Be that as it may, since this Court in the case of Laxmi
Devi Sugar Mills Ltd. (supra), has stated that the Management
cannot be permitted to justify the punishment on grounds of
charges other than those mentioned in the chargesheet, we
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would leave this issue at that.
But what is stated by us hereinabove would not in any
manner, vitiate the ultimate justification of the dismissal order
as held by the Labour Court. It is to be noticed that the charge
memo issued to the workmen has in specific terms stated that
the workmen concerned on 12th \026 13th October, 1980 entered
the Manager’s bungalow, armed with deadly weapons, caused
damage to the property of the estate and illegally confined the
Manager and others between 8.30 p.m. on 12th October till 3
a.m. on 13th October, 1980. This allegation as found in the
charge memo has also been found to be proved by the Labour
Court. Therefore, the question for our consideration is: whether
this finding as alleged in the chargesheet by itself is sufficient
to justify the order of dismissal without the support of the
allegation of extortion. On this aspect of the case the decision
of this Court in Laxmi Devi Sugar Mills Ltd. (supra) will not
assist the respondents’ case. In that case, the only charge
against the workman was that he instigated the other workmen
to demand the removal of the General Manager which charge
was not proved in the enquiry, then the management tried to
justify the removal by adducing evidence on other allegations in
regard to which there was no charge, in those factual situation
this Court held such justification based uncharged allegation
was impermissible.
In the case in hand, the facts are different, the charge
contained the allegation of riotous behaviour, causing damage
to the property and wrongful confinement, these charges were
held to be proved the additional fact of extortion though
factually proved was outside the charge, hence, we will have to
consider whether charges proved, other than that of extortion
is sufficient to confirm the approval of dismissal of the
workmen. From the facts noticed hereinabove, it is seen that on
the night between 12th and 13th of October, 1980, the concerned
workmen entered the Estate armed with deadly weapon caused
damage to the property of the Estate and wrongfully confined
the Manager and others between 8.30 PM on 12th to 3.00 AM
on 13th of next day. These facts which are mentioned in the
Charge-Memo and held proved establishes misconducts
alleged against the concerned workmen in the Charge-Memo,
in this back ground even proceeding on the basis that the
allegation of extortion has not been legally established and
ought not to be considered as a misconduct, in our opinion, the
other misconducts of causing damage to the property Gherao
and wrongfully confining the Manager and others for a long
period are by themselves sufficient to come to the conclusion
that the concerned workmen have indulged in misconduct
punishable under the standing orders applicable to them. The
allegation of extortion though being a part of the continuing
act of misconducts is severable from the other allegations, on
the basis of the finding of the Labour Court the allegations
alleged the concerned workmen can be accepted without
reference to its finding on the allegation of extortion.
The next contention addressed on behalf of the
respondents is that the Labour Court ought not to have brushed
aside the finding of the criminal court which according to the
learned Single Judge ’honorably’ acquitted the workmen-
accused of the offence before it. We have been taken through
the said judgment of the criminal court and we must record that
there was such ’honorable’ acquittal by the criminal court. The
acquittal by the criminal court was based on the fact that the
prosecution did not produce sufficient material to establish its
charge which is clear from the following observations found in
the judgment of the criminal court:
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"Absolutely in the evidence on record of the
prosecution witnesses I have found nothing
against the accused persons. The
prosecution totally fails to prove the charges
under Sections 147, 353, 329 IPC"
Learned counsel for the respondents in regard to the
above contention relied on a judgment of this Court in the case
of Capt. M. Paul Anthony (supra). In our opinion, even that
case would not support the respondents herein because in the
said case the evidence led in the criminal case, as well as in the
domestic enquiry was one and the same and the criminal case
having acquitted the workmen on the very same evidence, this
Court came to the conclusion that the finding to the contrary
on the very same evidence by the domestic enquiry would be
unjust, unfair and rather oppressive. It is to be noted in that
case the finding by the tribunal was arrived in an ex parte
departmental proceeding. In the case in hand, we have noticed
before the Labour Court the evidence led by the management
was different from that led by the prosecution in the criminal
case and the materials before the criminal court and the Labour
Court were entirely different. Therefore, it was open to the
Labour Court to have come to an independent conclusion de
hors the finding of the criminal court. But at this stage it
should be noted that it is not as if the Labour Court in the
instant case was totally oblivious of the proceedings before the
criminal court. The Labour Court has in fact perused the order
of the Judicial Magistrate and the exhibits produced therein
and came to an independent conclusion that the order of the
criminal case has no bearing on the proceedings before it
which finding of the Labour Court, in our opinion, is justified.
It may be some use to us to refer at this stage to a judgment of
this Court in the case of State of Rajasthan (supra) wherein it
is held thus :
"There is yet another reason. The approach
and the objective in the criminal proceedings
and the disciplinary proceedings is
altogether distinct and different. In the
disciplinary proceedings, the question is
whether the respondent is guilty of such
conduct as would merit his removal from
service or a lesser punishment, as the case
may be, whereas in the criminal proceedings
the question is whether the offences
registered against him under the Prevention
of Corruption Act (and the Indian Penal
Code, if any) are established and, if
established, what sentence should be
imposed upon him. The standard of proof,
the mode of enquiry and the rules governing
the enquiry and trial in both the cases are
entirely distinct and different\005\005."
From the above, it is seen that the approach and the
objectives of the criminal proceedings and the disciplinary
proceedings are altogether distinct and different. The
observations therein indicate that the Labour Court is not bound
by the findings of the criminal court.
Even the reliance placed in the case of M/s. Burn & Co.
(supra), in our opinion, does not assist the workmen in this
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appeal. That was a case where this Court came to the conclusion
that there was no dependable evidence against the individual
workman who has incited the workers to participate in the strike.
In such circumstances, the Court came to the conclusion that in
the absence of any evidence individually implicating the
workmen concerned an omnibus allegation against all workmen
cannot be used to punish only some workmen. Such is not the
situation in the facts of this case wherein we have noticed that
the tribunal has come to the conclusion that the concerned
workmen had participated in the gherao armed with deadly
weapons and caused damage to the property of the Estate and
wrongfully confined the Manager and others for nearly 8 hrs.
Therefore, it found all those workmen who took part in the said
incident guilty of the misconduct.
This leaves us to consider whether the punishment of
dismissal awarded to the concerned workmen de hors the
allegation of extortion is disproportionate to the misconduct
proved against them. From the evidence proved, we find the
concerned workmen entered the estate armed with deadly
weapons with a view to gherao the Manager and others in that
process they caused damage to the property of the estate and
wrongfully confined the Manager and others from 8.30 p.m. on
12th of October to 3 a.m. on the next day. These charges, in our
opinion, are grave enough to attract the punishment of dismissal
even without the aid of the allegation of extortion. The fact that
the Management entered into settlement with some of the
workmen who were also found guilty of the charge would not, in
any manner, reduce the gravity of the misconduct in regard to
the workmen concerned in this appeal because these workmen
did not agree with the settlement which others are agreed instead
chose to question the punishment.
For the reasons stated above, this appeal succeeds. The
orders of the High Court are set aside that of the lower court is
restored. The appeal is allowed.