IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Writ Petition (C) No. 1855/2008 1. The Workman represented by the Secretary, Assam Chah Karmachari Sangha, Jorhat Circle, P.O. Jorhat. VERSUS 1. The Management of Dufflating T. E., P.O.-Titabor, District-Jorhat. 2. The Presiding Officer, Industrial Tribunal, Dibrugarh. Petitioner. Respondents. BEFORE THE HON BLE MR JUSTICE HRISHIKESH ROY For the petitioner : Ms. A. Bhattacharyya, Mr. P. Kalita. Advocates. For the respondent No.1 : Mr. SN Sarma, Sr. Advocate, Mr. A Sarma, Mr. N Sarma, Mr. A. Jahid.. Advocates. Date of hearing and Judgment : 19.8.2015. JUDGMENT AND ORDER (ORAL) Heard Ms. A. Bhattacharjee, the learned Counsel appearing for the petitioner union i.e. Assam Chah Mazdoor Karmachari Sangha which is espousing the cause of the delinquent clerk Pulak Chandra Borthakur of the Dufflating T.E. The management is represented by the learned counsel Mr. A. Sarma. 2. While serving as a garden clerk in the Dufflating T.E., a show cause notice was issued against the petitioner on 20.8.2011 (Annexure-1) but this notice was discarded and eventually the charge memo was issued on 21.9.2001 (Annexure-3), where 21 charges were leveled against the workman, where it was alleged that the garden clerk was responsible for preparing the attendance record, plucking accounts and payment of wages for the workers engaged during the tea plucking session and the substance of the charge was that the attendance records were manipulated to illegally show presence of absentee workers and thereby payment were shown to have been made to them in Writ Petition (C) No.1855/2008 Page 1 of 6
the wage register but those amounts were actually misappropriated by the delinquent clerk. 3. Since the management did not press the Charge Nos,14, 15, 16, 17, 18, 20 & 21 and failed to prove the Charge Nos.6, 7, 8, 9, 10, 11, 12 & 19, in this proceeding we are concerned only with 5 charges and those are extracted here-in-below for ready reference:.. 2. It is alleged that Smt. Amirun Nissa was paid wages for the period as follows: From 20-06-2001 to 03-07-2001 = Rs.420.78 From 04-07-2001 to 17-07-2001 = Rs.456.59 From 18-07-2001 to 31-07-2001 = Rs.240.21 From 01-08-2001 to 14-08-2001 = Rs.213.05 However, from records, it was seen that she was absent on duty from 20-06-2001 to 28-08-2001 and as such you have alleged to have paid wages to a worker who was not on duty as above as and thus misappropriated the above amounts. 3. It is alleged that you have marked present of Smt. Sajoni Bakti from 8-8-2001 to 14-8-2001 and paid wages for all these period amounting to Rs.202.29. However, from our records based on hospital receipts and admission & discharge slips, it was confirmed that she was an indoor patient at Jorhat Christian Medical Centre from 9-8-2001 to 13-8-2001. This is alleged to have been a clear case defraud on the company. 4. It is alleged that Smti. Birajo Munda, W/O. Sri Matias Munda was absent from duty from 8.7.2001 till date. However, you continued to mark her present on duty during all these period and an amount of Rs.1244.86 was drawn from the Company for her payment which was actually not paid. 5. It is confirmed that Smti. Birchi Bhuyan worked only on 1 (one) day in W/E 14-8-2001 but you alleged to have paid wages for 2 (two) days amounting to Rs.84.32, but actual payment for 1 (one) day should have been Rs.42.78 only. 13. Smti. Lakhi was shown as present in work on 1 st, 2 nd, 3 rd, 4 th, 8 th, 10 th, 13 th & 14 th August, 2001, calculated wages and alleged to have been paid to her. However, from her own statement of claim, she worked only for 5 (five) days. It is alleged that she was denied complete payment and thus you misappropriated the whole amount to Rs.297.14 only... 4. The delinquent in his written reply furnished on 29.9.2001 (Annexure-4), accepted that some absentee workers were marked present in the attendance register but he explained the same by claiming the prevalence of the badli system where a member fulfill the plucking target of the absentee worker and in those cases, the Writ Petition (C) No.1855/2008 Page 2 of 6
payment is shown on account of the garden worker but wages are paid to the one who worked as the substitute worker. 5. The reply was found to be unsatisfactory and thus a domestic inquiry was held and on the basis of the guilty finding, the management dismissed the delinquent w.e.f. 6.11.2001. Accordingly a reference was drawn up under Section 10 of the Industrial Disputes Act on the legality of the dismissal order and the matter was referred for consideration of the learned Industrial Tribunal at Dibrugarh. The management chose not to rely on the domestic inquiry and accordingly evidence was allowed to be adduced by both sides before the Industrial Tribunal in the reference proceeding. In order to sustain the disciplinary action, the management adduced 11 witnesses, whereas the Trade Union adduced two defence witnesses to prove the case of the workman. 6.1. On the charge No.2 pertaining to payment of wages to Amirun Nissa, when she was absent from duty while being admitted in hospital from 9.8.2001 to 13.8.2001, the evidence of MW.8 Manuar Hussain (husband of Amirun Nissa) was taken into account which established that Amirun Nissa was admitted in the hospital and was absent till 17.8.2001 but since wage payment against her account was made by the delinquent, the 2 nd charge was found to be partially proved for the period from 1.8.2001 to 14.8.2001. 6.2. Against the 3 rd charge, the plucker Smt. Sajoni Bakti was shown to be present for duty from 8.8.2001 to 14.8.2001 and her salary was drawn for the said period. But during the relevant time, Sajoni Bakti was in the Jorhat Christian Medical Centre to attend to her sick child from 9.8.2001 to 13.8.2001 and accordingly on the basis of the medical records and the attendance register and the wage register, the 3 rd charge was held to have been proved by the learned Tribunal. 6.3. Similarly another T.E. worker Smti. Birajo Munda was on maternity leave from 8.7.2001 to 17.8.2001 but the worker was shown to be present and wages were drawn in her account by the delinquent clerk. Therefore the 4 th charge was found to have been partially proved. 6.4. The non-payment of wages to the T.E. worker Smti. Birchi Bhuyan against Charge No.5 was held to have been established on the basis of the complaint given by the worker herself by connecting the oral testimony with the attendance register and the wage register. Hence the wages due to this worker was found to have been misappropriated by the delinquent clerk who maintained the registers and disbursed payments. Writ Petition (C) No.1855/2008 Page 3 of 6
6.5. The charge No.13 related to the worker Smti Lakhi Kahar. Her presence was recorded for 8 days from 1.8.2001 to 14.8.2001 in the attendance register but the concerned worker had worked only for 5 days and thus some misappropriation on account of this worker was also found to be proved against the delinquent. 7. By evaluating the evidence adduced before it, the learned Tribunal concluded that the management succeeded in proving the charge Nos.3 and 5 fully but they could only partially prove the charge Nos.2, 4 and 13 against the delinquent and accordingly gross misconduct of misappropriation was held to have been established against the garden clerk. The loss of confidence of the management was treated to be a natural corollary for such serious charge and accordingly the dismissal decision of the management was answered against the delinquent through the impugned award dated 29.6.2007, rendered by the learned Industrial Tribunal. 8.1. Assailing the legality of the award in favour of the dismissal decision, Ms. A. Bhattacharyya, learned counsel submits that it is not a case of misappropriation as the garden clerk followed the practice of badli system and hence showed payment against the absentee workers and therefore it is argued that the charge of misappropriation is not logically established on the basis of the available evidence. 8.2. The learned counsel for the Union refers to the evidence of the delinquent clerk to show that other employees were present when the wages are disbursed to the T.E. workers and on this basis, Ms. Bhattacharyya argues that the learned Tribunal erred in answering the reference against the delinquent. 8.3. Ms. Bhattacharyya submits that the punishment for a long serving employee is disproportionate and the learned Industrial Tribunal should have appreciated the serious consequence of the punishment of dismissal inflicted upon the delinquent. 8.4. The petitioner relies on the Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. reported in (1973) 1 SCC 813 to argue that this is a case of victimization and unfair labour practice of the management and the learned Industrial Tribunal failed to appreciate the evidence in its correct perspective to do justice to the long serving employee. 9.1. On the other hand Mr. A. Sarma, the learned counsel submits that a clear case of systematic defalcation of the entries in the attendance register and wage register is established from the evidence and since it is admitted by the delinquent clerk that he maintained these registers and made payment to the garden workers, the misappropriation of money over a long period of time by the clerk is clearly established. Writ Petition (C) No.1855/2008 Page 4 of 6
9.2. The learned lawyer for the management refers to the evidence of MW.4 and MW.11 to project that the system of badli worker was not prevalent in the Dufflating T.E. and since no evidence was adduced to the contrary by the delinquent clerk, the conclusion on the basis of available evidence is submitted to be conclusive. 10. When a workman is dismissed from service in pursuant to a disciplinary proceeding and a Writ Petition is filed, the Supreme Court in State Bank of India vs. Narendra Kumar Pandey reported in (2013) 2 SCC 740 held that while exercising powers under Article 226 of the Constitution, the High Court does not sit as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct error of law or procedural error resulting in manifest miscarriage of justice or violation of the principles of natural justice. Moreover the High Court should not re-appreciate the evidence to reach a different conclusion, if the decision of the disciplinary authority is supported by relevant evidence. 11. Proceeding on the above basis, if we analyze the evidence, what is seen here is that the delinquent in his cross-examination had admitted that it is his duty to prepare the attendance records and pay the wage to the T.E. workers during the plucking season and most significantly all the exhibited register(s) are in the handwriting of the delinquent clerk. Although a plea of payment made to the badli worker is pleaded in defence, no evidence was adduced by the delinquent to show the prevalence of the system of badli worker in the Dufflating T.E. 12. On the other hand, the MW.4 Pabin Bagti in his evidence clearly stated that there is no badli system prevalent in the T.E. Similar testimony was given by the MW.11 who testified that badli workers are not engaged for the absentee workers during the plucking season and hence wages can t be shown to be paid against them. 13. The evidence of MW.9 Retneswar Bhuyan indicates the modus operandi of the delinquent clerk. According to this witness, after wages are disbursed to all the T.E.s workers, from the surplus amount, Rs.120/- is given by the delinquent to the MW.9 and with this money the garden clerk and other staff used to purchase liquor and this practice of stealing from the till was continuing for quite sometimes. 14. It is also discernable from the evidence of MW.4, MW.5, MW.7 and MW.11 that the amount shown in the payment register was never paid/fully paid to the concerned worker(s) and obviously the differential amounts were misappropriated by the garden clerk, as can be seen from the oral and documentary evidence produced before the Industrial Tribunal. Writ Petition (C) No.1855/2008 Page 5 of 6
15. When a disciplinary proceeding is drawn up against an employee, the standard of proof is preponderance of probabilities and some relevant material to justify the conclusion reached by the Enquiry Officer and the writ Court is not expected to act as an appellate authority to judge the merit of the conclusion reached by the Enquiry Officer. Interference would be justified only when there is procedural error leading to manifest injustice. But in the present case, as earlier noted, the delinquent was afforded a fair opportunity to defend the charges and the conclusion of the disciplinary authority is based on oral and documentary evidence. 16. In the present case, the garden clerk is found guilty of systematic pilferage or misappropriation from the wage bills of the workers and under such circumstances, the loss of confidence of the management can t be said to be unreasonable. Therefore in my view, the punishment of dismissal for such serious misconduct does not justify interference of the High Court, as this is not found to be a case of victimization of the delinquent clerk. Moreover the conclusions reached by the Industrial Tribunal on the five charges in my perception are established adequately from the exhibited register(s) and oral testimony of the witnesses and no infirmity is found with this conclusion. In such circumstances, the ratio of Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. (Supra) can have no application in the present case. 17. In view of the above discussion, the challenge to the award of the Industrial Tribunal is found to be devoid of merit and accordingly the case is dismissed, without any order on cost. JUDGE Barman. Writ Petition (C) No.1855/2008 Page 6 of 6