MANU/GH/0524/2015

Equivalent Citation: [2015(147)FLR642], 2016(2)GLT874

IN THE HIGH COURT OF GAUHATI

Writ Petition (C) No. 126 of 2009
Decided On: 19.09.2015
Appellants: Manager, Hukanpukhuri Tea Estate
Vs.
Respondent: State of Assam and Ors.
Hon'ble Judges/Coram:
Ujjal Bhuyan, J.
Counsels:
For Appellant/Petitioner/Plaintiff: S.N. Sarma, K. Agarwal, Senior Advocates, K.K.
Bhatra, P. Neog and A. Sarma, Advocates
For Respondents/Defendant: GA and S. Das, Advocate
Case Note:
Labour and Industrial - Reinstatement - Validity thereof - Labour Court held
that Respondent-employee was entitled to be reinstated in service with full
back wages as Appellant-management was not justified in dismissing
Respondent from service - Hence, present petition - Whether Respondent
was rightly dismissed on account of had extreme indisciplined conduct -
Held, earlier finding of Single Bench that domestic inquiry conducted by
management was invalid, remained undisturbed - On remand, management
did not adduce any further evidence in support of charges levelled against
Respondent - Manager and Assistant Manager who were crucial to narrative
of management did not come forward - Labour Court answered reference by
recording findings of fact based on evidence on record - No perversity in
impugned award of Labour Court - Petition dismissed. [25],[31] and[40]
JUDGMENT
Ujjal Bhuyan, J.
1 . By filing this petition under article 226 of the Constitution of India, petitioner
seeks quashing of award dated 08-02-2008 passed by the Labour Court, Dibrugarh in
Reference Case No. 18/1995.
2. Petitioner is the management and respondent No. 3 is the workman.
3. Facts of the case as projected may be briefly noted.
4 . A bipartite settlement dated 07-03-1994 was entered into between the
management and workmen of Hukanpukhuri Tea Estate represented by the Assam
Chah Mazdoor Sangha (ACMS) for supply of firewood to the workers by the
management. However, because of financial crisis, the management was not in a
position to supply firewood to the workers. Management however promised to supply
the firewood in installments.

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5. Respondent No. 3 who belongs to a different trade union which is not recognized,
instigated the workers of the Tea Estate to resort to strike and led other workers to
the office of the Manager whereafter the Manager and the Assistant Manager were
gheraoed demanding immediate fulfillment of their demand relating to supply of
firewood to the workers or payment of cash compensation in lieu thereof. The
Manager and the Assistant Manager had to be rescued by the police.
6. On 17-03-1994 respondent No. 3 was placed under suspension. Show cause notice
was issued on 30-03-1994. As per the show-cause notice, four charges were framed
against the respondent No. 3 as under:--
"(i) He alongwith two others left the place of work and instigated a section of
the workers to do so, thereby resorting to an unjustified and lightening
strike.
(ii) He led a section of the workers to the office of the Manager and gheraoed
him and Mr. K.N. Singh, Assistant Manager from 7:30AM to 11AM demanding
cash compensation in lieu of firewood.
(iii) He abused the two officers with filthy language and threatened them
with dire consequences if their demand was not met.
(iv) He instigated his followers to resort to violence for which police had to
be called to rescue the Manager and the Assistant Manager."
7 . Reply submitted by respondent No. 3 to the show-cause notice was found to be
not satisfactory. Accordingly, management decided to hold domestic inquiry against
respondent No. 3. For this purpose, Enquiry Officer was appointed. In the inquiry
respondent No. 3 remained absent. Consequently, the inquiry was held ex-parte. At
the end of the inquiry, Enquiry Officer submitted her report to the management
wherein the charges framed against respondent No. 3 were held to be proved.
8 . On the basis of the inquiry report, respondent No. 3 was dismissed from service
vide order dated 12-09-1994.
9 . On the dismissal of respondent No. 3, an industrial dispute was raised by him
which ultimately led to making of a reference to the Labour Court, Dibrugarh by the
appropriate Government i.e. Government of Assam in the Labour and Employment
Department u/s. 10(1)(c)(d) of the Industrial Disputes Act, 1947 vide notification
dated 10-10-1995. The following issues were referred to adjudication by the Labour
Court:--
"(i) Whether the management of Hukanpukhuri Tea Estate was justified in
dismissing Shri Nimai Dutta from service with immediate effect vide their
letter No. A.8/82/94 dtd. 12-09-1994?
(ii) If not, what relief the workman is entitled to?"
10. On receipt of the reference, Labour Court registered the same as Reference Case
No. 18/1995. On notice being issued, both the sides appeared and submitted their
written statements.
11. Labour Court decided to hear validity of the domestic inquiry as a preliminary
issue. On this point Enquiry Officer gave evidence on behalf of the management. On
24-01-1997 an order was passed upholding the validity of the domestic inquiry.

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Thereafter 3 witnesses gave evidence on behalf of the management. Likewise, 3
witnesses gave evidence in support of the workman. However, the Labour Court took
the view that since the domestic inquiry was held to be valid, question of considering
the evidence on merit would not arise. Accordingly, award was passed on 20-12-
2000 holding that management was justified in dismissing the workman from service
and as such the workman was not entitled to any relief.
12. This was challenged by respondent No. 3 before this Court by filing WP(C) No.
5011/2001. By the judgment and order dated 12-02-2007, learned Single Judge held
that the domestic inquiry conducted against respondent No. 3 was neither fair nor
reasonable. Consequently, the findings of the domestic inquiry and the award were
set aside with consequential direction to the management to reinstate respondent No.
3 in service with immediate effect.
13. This decision of the learned Single Judge was assailed by the petitioner in Writ
Appeal No. 108/2007. The appellate Court vide the order dated 26-03-2007 while
maintaining the Single Bench decision holding the domestic inquiry invalid, however,
set aside the order of reinstatement and remanded the matter back to the Labour
Court for decision on merit after allowing the parties to adduce further evidence if
necessary and rehearing the arguments.
14. It appears that the workman i.e. respondent No. 3 thereafter again gave evidence
as WW 1. Management did not adduce further evidence. At this stage it may be
mentioned that at the earlier stage management had produced four witnesses
whereas workman had produced three witnesses including himself as WW 1.
15. On due consideration, the Labour Court vide award dated 08-02-2008 answered
issue No. 1 in the negative and held that management was not justified in dismissing
respondent No. 3 from service with immediate effect. In so far issue No. 2 was
concerned, Labour Court held that the workman was entitled to be reinstated in
service and further held that he was entitled to continuity in service with full back
wages.
16. It is against this award that the present writ petition has been filed.
17. This Court vide order dated 19-01-2009 admitted the writ petition for hearing
and in the meanwhile suspended the impugned award dated 08-02-2008.
18. On an application filed by respondent No. 3 u/s. 17B of the Industrial Disputes
Act, 1947, which was registered as Misc. Case No. 3338/2013, this Court passed
order dated 02-04-2014 directing the petitioner to pay last drawn wages to
respondent No. 3 w.e.f. 16-11-2013 i.e. from the date of filing of the affidavit by the
workman in the Court in compliance to Section 17B of the Industrial Disputes Act,
1947.
19. Heard Mr. S.N. Sarma, learned Senior Counsel for the petitioner and Mr. S. Das,
learned Counsel for respondent No. 3.
20. Mr. Sarma, learned Senior Counsel for the petitioner submits that respondent No.
3 had exhibited extreme indisciplined conduct which was prejudicial to maintenance
of orderliness in the Tea Estate. No management can condone such unruly and
indisciplined conduct. Respondent No. 3 had instigated a section of the workers
which resulted in an illegal strike. He had also led a group of workers and gheraoed
the Manager and Assistant Manager of the Tea Estate who had to be rescued with the

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help of the police. The evidence on record clearly establishes such conduct of
respondent No. 3. However, Labour Court overlooked this aspect of the matter and
erroneously answered the reference in favour of the workman. Findings of the Labour
Court cannot be sustained. He therefore submits that present is a fit case to interfere
with the award and uphold the decision of the management dismissing the workman
from service. In support of his submissions, learned Senior Counsel for the petitioner
has placed reliance on the following decisions:--
"(i) MANU/SC/0341/1975 : (1975) 4 SCC 332 (Chemicals and Fibres of India
Limited v. D.G. Bhoir)
(ii) MANU/SC/0426/1992 : (1992) 4 SCC 54 (State of Punjab v. Ram Singh)
(iii) MANU/SC/0890/1998 : (1998) 1 SCC 650 (P. Virudhachalam v.
Management of Lotus Mills)
(iv) MANU/SC/0181/2005 : (2005) 3 SCC 401 (MP Electricity Board v.
Jagdish Chandra Sharma)
(v) MANU/SC/0222/2005 : (2005) 3 SCC 736 (Onkar Nath Mishra v. State of
Haryana)
(vi) MANU/SC/0661/2005 : (2005) 8 SCC 46 (Obettee (P) Limited v. Md.
Shafiq Khan)"
21. On the other hand Mr. S. Das, learned Counsel for respondent No. 3 submits that
respondent No. 3 was victimized by the management for raising genuine and
bonafide grievance of the workers. Management had failed to supply firewood to the
workers as per agreement entered into between them. Respondent No. 3 alongwith
other workers had raised legitimate grievance before the management to provide
firewood to the workers failing which to pay cash compensation in lieu thereof.
Management has exaggerated the protest raised by respondent No. 3 and his fellow
workmen. He submits that respondent No. 3 was dismissed from service following an
ex-parte inquiry which has been held to be invalid by this Court. On the basis of the
materials on record, Labour Court has rightly granted relief to respondent No. 3 by
answering the reference in favour of respondent No. 3. The award passed by the
Labour Court is based on the materials on record and cannot be said to be either
perverse or suffering from patent illegality. Award of the Labour Court is liable to be
upheld and the writ petition dismissed.
22. Submissions made by learned Counsel for the parties have been considered. Also
perused the materials on record including the LCR.
23. As already noticed above, the following charges were levelled against respondent
No. 3 -
"(i) He alongwith two others left the place of work and instigated a section of
the workers to do so, thereby resorting to an unjustified and lightening
strike.
(ii) He led a section of the workers to the office of the Manager and gheraoed
him and Mr. K.N. Singh, Assistant Manager from 7:30AM to 11AM demanding
cash compensation in lieu of firewood.
(iii) He abused the two officers with filthy language and threatened them

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 with dire consequences if their demand was not met.
(iv) He instigated his followers to resort to violence for which police had to
be called to rescue the Manager and the Assistant Manager."
2 4 . As per the factual narrative, respondent No. 3 was placed under suspension
whereafter a show-cause notice was issued to him. Reply of respondent No. 3 was
found to be not satisfactory and accordingly domestic inquiry was ordered. However,
the domestic inquiry proceeded ex-parte against respondent No. 3. It appears the
Enquiry Officer in her report held that the charges against respondent No. 3 stood
proved. On the basis of such report, management dismissed respondent No. 3 from
service. The led to an industrial dispute, ultimately resulting in registration of the
related reference. At an earlier stage award was passed on 20-12-2000 holding that
the domestic inquiry conducted by the management against respondent No. 3 was
valid. Labour Court thereafter did not enter into the merits and held that management
was justified in dismissing respondent No. 3 from service and therefore he was not
entitled to any relief. This came to be challenged by respondent No. 3 before this
Court in a writ petition which was allowed by a Single Bench by quashing the award
as well as findings of the domestic inquiry with consequential direction for
reinstatement of respondent No. 3 in service. On appeal by the management, the
Division Bench set aside the order of re-instatement and remanded the matter back to
the Labour Court for a decision on merit after allowing the parties to adduce further
evidence and arguments. On remand, only respondent No. 3 gave further evidence
whereafter the matter was heard and the award passed.
25. Therefore from the above it is evident that the earlier finding of the Single Bench
that the domestic inquiry conducted by the management against respondent No. 3
was invalid remained undisturbed. Only the direction for reinstatement was interfered
with by the Division Bench and the matter was remanded for hearing afresh by the
Labour Court on the justification of the action of the management in dismissing
respondent No. 3 from service. However, on remand the management did not adduce
any further evidence in support of the charges levelled against respondent No. 3 to
justify its action of dismissing respondent No. 3 from service.
2 6 . At this stage, the written statement submitted by the management may be
referred to. In the written statement though management had sought leave of the
Labour Court to file additional written statement, rejoinder and such other papers and
documents to justify dismissal of respondent No. 3, no prayer was made for treating
validity of the domestic inquiry as a preliminary issue. Four witnesses gave evidence
on behalf of the management as under:--
"MW 1 - Arati Sarma, Enquiry Officer on 22-04-1996.
MW 2 - Aftab Ahmed, Head Clerk on 17-08-1999.
MW 3 - Anand Barla, Clerk on 17-08-1999.
MW 4 - Shamil Nandi, Garden Unit Secretary of ACMS on 17-08-1999."
Though three witnesses adduced evidence on behalf of respondent No. 3 as WW 1 -
Nimay Dutta, WW 2 - Sudhang Sunar and WW 3 - Basanti, WW 2 and WW 3 being
Co-workers of WW - 1, on 11-04-2000, after remand by the Division Bench for
decision on merit only respondent No. 3 adduced fresh evidence as WW 1 on 04-10-
2007. Thus, on remand no fresh/additional evidence was tendered by the

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management in addition to the evidence already given by MW 2, MW 3 and MW 4 on
17-08-1999 to justify the charges against respondent No. 3 as against the clear
evidence of WW 1 denying the charges.
27. On the right of the management to adduce further evidence to substantiate the
charge or charges against the workman after deciding the preliminary issue of validity
of the domestic inquiry against the management, the Hon'ble Supreme Court in
Sambhu Nath Goyal v. Bank of Baroda, reported in MANU/SC/0256/1983 : (1983) 4
SCC 491 laid down the following principles:--
"16. We think that the application of the management to seek the permission
of the Labour Court or Industrial Tribunal for availing the right to adduce
further evidence to substantiate the charge or charges framed against the
workman referred to in the above passage is the application which may be
filed by the management during the pendency of its application made before
the Labour Court or Industrial Tribunal seeking its permission under Section
33 of the Industrial Disputes Act, 1947 to take a certain action or grant
approval of the action taken by it. The management is made aware of the
workman's contention regarding the defect in the domestic enquiry by the
written statement of defence filed by him in the application filed by the
management under Section 33 of the Act. Then, if the management chooses
to exercise its right, it must make up its mind at the earliest stage and file
the application for that purpose without any unreasonable delay. But when
the question arises in a reference under Section 10 of the Act after the
workman had been punished pursuant to a finding of guilt recorded against
him in the domestic enquiry, there is no question of the management filing
any application for permission to lead further evidence in support of the
charge or charges framed against the workman, for the defect in the
domestic enquiry is pointed out by the workman in his written claim
statement filed in the Labour Court or Industrial Tribunal after the reference
had been received and the management has the opportunity to look into that
statement before it files its written statement of defence in the enquiry before
the Labour Court or Industrial Tribunal and could make the request for the
opportunity in the written statement itself. If it does not choose to do so at
that stage it cannot be a lowed to do it at any later stage of the proceedings
by filing any application for the purpose which may result in delay which may
lead to wrecking the morale of the workman and compel him to surrender
which he may not otherwise do."
28. Thus in Sambhu Nath Goyal (supra), the view taken by the Apex Court was that
the management should make the request for opportunity to adduce evidence in case
the domestic enquiry was held to be invalid in the written statement itself. If such a
request was not made at the initial stage, it cannot be allowed to do so at any later
stage of the proceeding by filing application which would inevitably delay
adjudication of the proceeding thereby frustrating the very purpose and object of the
Industrial Disputes Act, 1947.
29. The Hon'ble Supreme Court in Karnataka State Road Transport Corporation v.
Lakshmidevamma (Smt.) & Anr., reported in MANU/SC/0314/2001 : (2001) 5 SCC
43, considered all the relevant decisions on the subject and summed up the position
by holding that by the judgment in Sambhu Nath Goyal (supra), the management was
given the right to adduce evidence to justify its domestic inquiry only if it had
reserved its right to do so in the objection filed to the reference made under section

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10 of the Industrial Disputes Act, 1947 or in the application made by it under section
33 of the said Act, meaning thereby that the management had to exercise its right of
leading fresh evidence at the first available opportunity and not at any time thereafter
during the proceedings before the Industrial Tribunal/Labour Court. The Constitution
Bench opined that the procedure laid down in Sambhu Nath Goyal (supra) is just and
fair and that the law laid down therein is the correct law on the point.
3 0 . The Apex Court observed that the right of the management to lead evidence
before the Labour Court or the Industrial Tribunal in justification of its decision under
consideration by such Tribunal or Court is not a statutory right, but is actually a
procedure laid down by the Supreme Court to avoid delay and multiplicity of
proceedings in the disposal of disputes between the management and the workman.
3 1 . Though no evidence was tendered by the management after remand, Labour
Court nevertheless considered the evidence earlier recorded and examined the
justification and validity of the charges levelled against respondent No. 3 in the light
of the evidence adduced. At this stage it may be pointed out that out of the four
management witnesses, MW1 was the Enquiry Officer whereas the other three
witnesses were the Head Clerk, Clerk and garden unit secretary of the rival union
(ACMS). Deposition of MW 1 would be of little evidentiary value as she was the
Enquiry Officer of the domestic inquiry conducted by the management against
respondent No. 3 since the domestic inquiry has been held to be invalid by this Court
which finding has since attained finality. The other three witnesses are low level
employees serving under the management with one of them belonging to the rival
union. The Manager and the Assistant Manager who were crucial to the narrative of
the management did not come forward or were not put up by the management as
their witnesses to depose before the Labour Court.
32. On the basis of the evidence on record, the Labour Court held that the workers
led by respondent No. 3 had resorted to strike. However it was held that the strike
was justified. Labour Court also recorded the finding that respondent No. 3 had only
led the other workers in resorting to strike but he did not instigate them to resort to
strike. Therefore charge No. 1 was held to be not established against respondent No.
3.
33. In so far charge No. 2 was concerned, Labour Court held that respondent No. 3
had led the other workers in gheraoeing the Manager and Assistant Manager in
support of their demand. Accordingly, charge No. 2 was held to be established
against respondent No. 3.
34. Regarding use of abusive language and threatening the Manager and Assistant
Manager i.e. charge No. 3, the finding of the Labour Court is that the said charge was
not satisfactorily proved.
35. As regards the charge of instigating the workers to resort to violence i.e. charge
No. 4, Labour Court held that the said charge was not established.
36. Since the findings of the Labour Court that respondent No. 3 had led the workers
to strike and had gheraoed the Manager and Assistant Manager have not been
questioned by the workman, Court would not enter into an examination of the validity
of such findings. However, the strike and gherao were held to be justified in the facts
and circumstances of the case. On the other hand it is the clear finding of the Labour
Court that respondent No. 3 did not instigate the other workers to strike and also he
did not use abusive and threatening language against the Manager and Assistant

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Manager. Another finding given is that respondent No. 3 did not incite the other
workers to resort to violence. These findings have been recorded by the Labour Court
on the basis of the available evidence. As already noticed above, the Manager and
Assistant Manager were central to the management narrative. They were the best
persons to prove the charges against respondent No. 3 that he had instigated the
workers to strike, that he had used abusive and threatening language against them
and that he had incited the workers to resort to violence, yet they did not come
forward or were put up as witnesses to adduce evidence. A witness whose evidence is
essential to the unfolding of the narrative should be called to depose before the
Court. This salutary principle is necessary for eliciting the truth. Absence of the
Manager and the Assistant Manager has clearly dented the case of the management.
37. The incident had occurred in the back drop of the failure of the management to
honour the settlement entered into with the workers on 07-03-1994 regarding supply
of firewood to them. It has come on record that the management had failed to
comply with the terms of the settlement which led to simmering tension amongst the
workers who on the fateful day went to the office of the Manager and Assistant
Manager demanding implementation of the settlement or cash payment in lieu
thereof.
38. Tea garden workers are one of the most marginalized sections of the society. For
them, life is harsh. They are not expected to ventilate their grievances in a
sophisticated and suave manner. Being workers having to grind daily, their method of
expression may be rough and ready. Therefore it will be wrong to condemn
occasional ventilation of their grievances in such manner. Of course, this is not to
condone any illegal strike or any act of intimidation or violence. Having said so, it
may be pointed out that the Labour Court on the basis of the materials on record
clearly held that no abusive language was used by respondent No. 3 or by the other
workers who had gone on strike which was held to be justified and that they did not
threaten the Manager and Assistant Manager with violence. Further categorical finding
is that respondent No. 3 did not instigate the workers to strike, rather he only led
them to strike which has been held to be justified. Though there was gherao, there
was no violence accompanying such gherao.
39. Reliance placed by Mr. Sarma, learned Counsel for the petitioner in the case of
Obettee (P) Ltd. (supra) appears to be misplaced in as much as that was a case of an
illegal strike whereas in the present case the strike has been held to be justified.
Likewise in MP Electricity Board (supra) the charge against the employee of hitting a
superior officer with an implement and causing him injury stood proved. On that
basis termination order was passed. Therefore, factually the said case is clearly
distinguishable from the present case. The decision in Onkar Nath Misra (supra) is
also distinguishable because in that case during the gherao one of the senior officers
received injuries. In that case it was established that the workman had taken part in
the gherao of the senior officers in which injury was caused to one of them. But in
the present case there is clear finding of fact that not only there was no violence or
instigation to violence, respondent No. 3 did not instigate the other workers to take
part in the strike or to threaten the Manager and Assistant Manager. The other finding
is that no abusive language was used.
40. Labour Court has answered the reference by recording findings of fact based on
the evidence on record. Labour Court is an adjudicatory forum where findings of fact
are recorded on the basis of evidence adduced. On the basis of the materials on
record it cannot be said that the findings recorded by the Labour Court are based on

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no evidence or suffer from patent illegality.
41. The Hon'ble Supreme Court in the case of Calcutta Port Shramik Union v. Calcutta
River Transport Association, reported in MANU/SC/0061/1988 : 1988 (Suppl.) SCC
768 held that attempt should be made by Courts exercising powers of judicial review
to sustain as far as possible the awards made by industrial tribunals instead of
picking holes here and there in the awards on hypertechnical grounds. In
MANU/SC/0782/1998 : (1999) 2 SCC 143; Savita Chemicals (P) Ltd. v. Dyes &
Chemicals Workers' Union, the Apex Court took the view that unless there was a
patent error committed by the Labour Court, the High Court under Article 227 should
not interfere with the findings of the Labour Court as if it is hearing an appeal. Again
in General Manager, Oil and Natural Gas Commission, Silchar v. Oil and Natural Gas
Commission Contractual Workers' Union; reported in MANU/SC/2784/2008 : (2008)
12 SCC 275, the Apex Court reiterated the position that the High Court has the
authority to enquire as to whether the finding arrived at by the industrial tribunal was
based on evidence and to correct an error apparent on the face of the record. High
Court would be justified in interfering with an award of an industrial tribunal on
account of patent illegality or on account of perversity. It was held that interference
would be limited only to a few cases, i.e., in the case of patent illegality or
perversity.
4 2 . As already discussed above, on an overall conspectus of the case, this Court
finds no perversity or patent illegality in the impugned award of the Labour Court.
The view taken by the Labour Court is a plausible view. That would not be a sufficient
ground for interference.
43. Therefore, this Court is unable to accede to the prayer of the petitioner and is of
the considered view that no interference in the impugned award is called for.
44. Writ petition is accordingly dismissed. No cost.
45. Registry to send down the LCR forthwith.
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