DEPARTMENTAL PROCEEDINGS vrs CRIMINAL TRIAL, PART XXI

SOME REFLECTIONS IN INDUSTRIAL AND SERVICE JURISPRUDENCE : DISCIPLINARY PROCEEDINGS VRS CRIMINAL TRIAL, ARTICLE 311, STANDARD OF PROOF,QUANTUM OF PUNISHMENT AND LEGAL PERSPECTIVE : AN APEX JUDICIAL DICTUM : PART-XXI?

AJAYA KUMAR SAMANTARAY, Ex- Central Labour Service

PRELUDE : I have already penned quite a good number of articles on Section 11 A of the Industrial Disputes Act, 1947. The esteemed readers of this journal are aware that Section 11 A of the Industrial Disputes Act, 1947 empowers the Labour Courts and Industrial Tribunals to modify the punishments inflicted on the delinquents. Now a question may arise :

WHETHER THE POWER CONFERRED ON LABOUR COURTS OR INDUSTRIAL TRIBUNALS IS SO WIDE OR UNFETTERED THAT THEY CAN INTERFERE WITH THE FINDINGS OF THE DOMESTIC TRIBUNALS (ENQUIRY OFFICERS) IN COURSE OF DOMESTIC ENQUIRY?

?????? In order to find an answer to the above question, let us analyse the following case – law :

THE CASE – LAW :

WEST BOKARO COLLIERY (TISCO LTD) vrs. R P SINGH [2009 (4) LLN 599 : 2009 SCLJ 486 : 2009 – I – LLJ – 220 : AIR 2008 SC 1162 : 2009 (120) FLR 1147 : 2008 (1) SCC (L&S) 890 : www.indiankanoon.org/doc/378045]DoJ : 1 FEBRUARY 2008???????????

FACTUM OF THE CASE :

??????????? One Shri R. P. Singh was working as a? senior dumper operator under TISCO Ltd at its Bakoro Colliery mines. He was deputed to work at an open cast mine at West Bokaro on 2nd March 1994 during the first shift from 5.00 A.M.? to 1.00 P.M. He left the place of his duty before the end of his shift duty and went to Rajiv Nagar area where one, Shri Harbans Kumar, Senior Officer (Security), along with a number of security personnel and other workers, was discharging his duties in connection with prevention of unauthorised construction on the company’s land. The delinquent workman, along with few others, approached Shri Harbans Kumar and shouted at him using abusive? language and threatened him with dire consequences in case the unauthorised construction was demolished. The delinquent, on being asked not to behave in the said manner, assaulted Shri Harbans Kumar with his hands and also resorted to brick batting as a result of which Shri Harbans Kumar and another person named S. P. Yadav sustained injuries on the face and other parts of the body.

??????????? Following the untoward behaviour, the Management issued a charge sheet to the delinquent whereby he was asked to show cause as to why disciplinary action should not be taken against him under Clauses 22 (5) and 22 (18) of the Standing Orders of the company for the following misconducts :

(a)??????? leaving work without permission;

(b)??????? Indecent, riotous and disorderly behaviour with a superior as well as co-worker.

In response to the above charges the delinquent submitted his explanation denying all charges levelled against him. Following the delinquent’s denial to the charges, the employer decided to conduct an enquiry and accordingly, appointed one, Shri Madhusudan Das, Dy. Manager (Personnel) as enquiry officer. The Enquiry Officer, after giving full opportunity to the delinquent, came to the conclusion that the charges levelled against him were found proved beyond reasonable doubt and submitted his report.

The Disciplinary Authority, after going through the findings of the Enquiry Officer as contained in the enquiry report and also the related enquiry papers, satisfied himself that charges had been established and recommended the dismissal of the delinquent from the services of the company with immediate effect. Accordingly, the delinquent was dismissed from the services on 23rd April 1994 / 25th April 1994.

?RAISING AN INDUSTRIAL DISPUTE:

??????????? Having felt aggrieved by the order of dismissal, the delinquent raised an industrial dispute before the jurisdictional Conciliation Officer. The dispute got referred to the Central Government Industrial Tribunal with the following terms of reference :

“Whether the action of the Management of West Bokaro Collieries of TISCO Ltd, PO Ghoto Tand, District Hazaribagh in dismissing Shri. Ram Pravesh, Ex Sr. Dumper Operator, from the services of the company with effect from 25th April 1994 is justified ? If not, to what relief the workman is entitled ?”

THE ADJUDICATION:

The delinquent, on 3 October 2003, made a statement before the Industrial Tribunal that he did not want to challenge the legality, fairness and propriety of the domestic enquiry. On this statement being made, the Industrial Tribunal, after careful consideration of the facts and circumstances and the submissions advanced by the counsel for the respondent, held that the domestic enquiry conducted by the Management was fair, proper and in accordance with the principles of natural justice. The matter was adjourned to 14th December for hearing argument on merit.

Subsequently, the Industrial Tribunal set aside the order of dismissal passed against the delinquent by holding that the management had failed to substantiate the charges brought against the workman concerned beyond reasonable doubt. Accordingly, order of dismissal passed against the delinquent workman was set aside and he was ordered to be reinstated with 50 percent back wages.

Now, the second question before us in :

WHETHER THE CHARGES LEVELLED AGAINST A DELINQUENT WORKMAN NEED BE PROVED BEYOND REASONABLE DOUBT IN A DOMESTIC ENQUIRY??

THE MANAGEMENT APPROACHED THE HIGH COURT :

??????????? The Management of TISCO Ltd, having felt aggrieved by the award of the Industrial Tribunal, filed a writ petition in the High Court which came to be dismissed. An intra court appeal, against the dismissal of the writ petition, by the Management, also met with the same fate.

THE MANAGEMENT MOVED THE SUPREME COURT :

Following dismissal of writ petition as well as the writ appeal, the Management of West Bokaro Collieries (TISCO Ltd) moved the Supreme Court by filing a Special Leave Petition (Civil). The following contentions were urged on behalf of the Management before the Supreme Court :

(i) That the findings recorded by the domestic tribunal based on the evidence can not be set aside or interfered with by the Industrial Tribunal or the Courts by substituting their substantive opinion in place of the one arrived at by the domestic tribunal.

(ii) That the Tribunal applied the standard of proof of beyond reasonable doubt which is required to be proved in criminal cases.

(iii) That in the domestic enquiry and Civil Courts, the standard of proof is of preponderance of probabilities.

(iv) That the Tribunal erred in relying upon the order of acquittal passed in favour of the workman by the criminal court as in the Criminal Cases, the standard of proof required to prove a charge is materially different than in civil matters.

??????????? On the contrary, the Counsel for the Respondent workman contended before the Supreme Court that the Industrial Tribunal was fully justified in coming to the different conclusion in exercise of its powers under Section 11 A of the Act.

THE ADJUDICATION PROCEEDINGS : SUPREME COURT:

??????????? On hearing both the sides at sufficient length, the Hon’ble Supreme Court moved forward to adjudicate the Civil Appeal. On re-appreciation of the evidence by the Tribunal, the Hon’ble Supreme Court observed as follows :?

“The Tribunal in its order on re-appreciation of evidence came to the conclusion that in the absence of any independent evidence other than of fellow workmen, the charge of indecent, riotous and disorderly behaviour with superior and co-worker was not proved. In so far as the absence from the duty is concerned, the Tribunal came to the conclusion that according to the workman, he had left the place of work at 12.25 P.M. and as the incident allegedly had taken place at 12.30 P.M., the respondent could not have reached the place of incident at 12.30 P.M. after collecting his other associates. In Para 14 of its order, the Tribunal concluded that management had failed to substantiate the charges brought against the workman beyond reasonable doubt.”

RELIANCE ON CASE – LAWS:

It would be quite pertinent here to cite the case – laws, on which the Hon’ble Supreme Court relied upon. Those are as follows :

(i)???????? KSRTC (NWKRTC) vrs. A. T. Mane [2004 (4) L.L.N. 786] : In this case, the Honourable Supreme Court has ruled as follows :

“From the above it is clear that once a domestic tribunal based on evidence comes to a particular conclusion, normally it is not open to the Appellate Tribunals and Courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. In the present case, there is evidence of the inspector who checked the bus which establishes the misconduct of the respondent. The domestic tribunal accepted that evidence and found the respondent guilty. But the Courts below misdirected themselves in insisting on the evidence of the ticketless passengers to reject the said finding which, in our opinion, as held by this court in Rattan Singh [1977 (2) LLN 50] is not a conditional precedent. We may herein note that the judgment of this court in Rattan Singh (vide supra) has since been followed, by this Court in Devendra Swamy vrs. Karnataka State Road Transport Corporation [2002 (2) LLN 16]”.

(ii)??????? Uttar Pradesh State Road Transport Corporation vrs. Vinod Kumar [2008 (1) LLN 762] : In this case, it has been ruled as follows:

“…..in the absence of a challenge to the legality or fairness of the domestic enquiry, the court should be reluctant to either interfere with the finding recorded by the enquiry officer or the punishment awarded by the punishing authority.”

LABOUR COURTS OR INDUSTRIAL TRIBUNALS ARE NOT APPELLATE FORA :

??????????? On this point, the Hon’ble Supreme Court has stated as follows :

“After going through the order of the Industrial Tribunal, we are of the opinion that the Tribunal has interfered with the findings recorded by the domestic tribunal as if it was the Appellate Tribunal. There was evidence present on record regarding indecent, riotous and disorderly behaviour of the respondent towards his superiors. The management witness who were present at the scene of occurrence have unequivocally deposed about the misbehaviour of the respondent towards his superiors. Their evidence has been discarded by the Tribunal by observing that in the absence of independent evidence, the statement of the workmen who were present at the scene of occurence could not be believed. The Industrial Tribunal fell in error in discarding the evidence produced by the Management only because the independent witnesses were not produced.”

??????????? On production of independent witnesses, the Hon’ble Supreme Court has stated as follows :

“it is nobody’s case that the independent witnesses were available at the scene of occurrence and the management had failed to produce them. It is possible that at the time of occurrence, only the workers of the management and the persons who were trying to put up the construction unauthorisedly were the persons present and no independent evidence was available. Statements of the fellow workmen had established the misconduct of the respondent. Enquiry Officer accepted the testimony of the witness produced by the management who had clearly implicated the respondent. It was a legitimate conclusion which could be arrived at and it would not be open to the Industrial Tribunal to substitute the said opinion by its own opinion”.?

On Tribunal’s finding that the delinquent left the workplace at 12.25 P.M. and could not reach the place of occurrence of the incident by 12.30 P.M., the Hon’ble Supreme Court has stated as follows:

“Findings recorded by the Tribunal that the workman had left the place of duty at 12.25 P.M. and, therefore, could not have reached the place of occurrence at 12.30 P.M. after collecting his other associates, is not based on evidence. The case of the management is that the respondent had left the place of duty at 12.05 P.M. and reached the place of occurrence at 12.30 P.M. after collecting his fellow workmen. There was sufficient time for the workman to reach the place of occurrence within half an hour as the distance between the place of duty and place of occurrence is only 1 km. The duty of the respondent workman was upto 1.00 O’clock. Even if it is accepted that he left the place of duty at 12.25 P.M., then also, he left the place of duty during his duty hours.”

On the observation of the Tribunal that the charges against the delinquent workman have not been proved beyond reasonable doubt, the Hon’ble Supreme Court has made the following observations :

“The Tribunal has set aside the report of the enquiry officer and the order of dismissal passed by the punishing authority by observing that the charges against the respondent were not proved beyond reasonable doubt. It has repeatedly been held by this court that the acquittal in a criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is well-settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental proceeding is preponderance of probabilities.”

RELIANCE ON CASE – LAWS : ON BEHALF OF WORKMAN:

??????????? Reliance was placed on the following case – laws on behalf of the workman :

(i)???????? Workman of Firestone Tyre and Rubber Company of India (Private) Ltd vrs. Firestone Tyre and Rubber Company of India (Private) Ltd : 1973 (1) L.L.N. 278 : AIR 1976 SC 1775 : 1976 SCR (3) 369.

(ii)??????? South Indian Cashew Factories Workers’ Union vrs. Kerala State Cashew Development Corporation Ltd : AIR 2006 SC 2208 : (2006) 5 SCC 201.???????

??????????? Relying on the above case – laws, it was contended on behalf of the workman that the Labour Court, in exercise of its jurisdiction under Section 11 A could have come to a different conclusion. There is no quarrel with this proposition of law. The Labour Court could have awarded lesser punishment in the given facts and circumstances of the case. In a case where two views are possible on evidence on record then the Industrial Tribunal should be very slow in coming to a conclusion other than one arrived at by the domestic tribunal by substituting its opinion in place of the opinion of the domestic tribunal.

??????????? While parting, the Hon’ble Supreme Court has stated that the Labour Court fell into factual error as well as legal error in setting aside the findings recorded by the domestic tribunal. Learned Single Judge as well as the Division Bench have simply affirmed the findings recorded by the Tribunal.

THE VERDICT:

??????????? 1.The Hon’ble Supreme Court allowed the appeal filed by the Management of West?Bokaro Colliery (TISCO Ltd).?

2.The order passed by the High Court as well as the Labour Court were set aside.

3. The order passed by the punishing (disciplinary) authority against the delinquent

??? workman was RESTORED.

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