The Manager Hukanpukhuri Tea Estate v State of Assam & ors

IN THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF

THE MANAGER HUKANAPUKHURI TEA ESTATE

(APPELLANT)

STATE OF ASSAM & ORS

(RESPONDENT)

ON SUBMISSION BEFORE THE HON’BLE SUPREME

COURT OF INDIA

MEMORANDUM ON BEHALF OF RESPONDENT

STATE OF ASSAM & ORS

ATUL KUMAR AGRAWAL

Semester- IV, Roll No- 37

Section- A

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Memorandum on Behalf of The Respondent Page 1

 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

TABLE OF CONTENTS

1. List of Abbreviation----------------------------------------------------3

2. Table of Cases-----------------------------------------------------------4

3. Statement of Facts--------------------------------------------------------6

4. Statement of Issues-------------------------------------------------------7

5. Summary of Pleadings--------------------------------------------------8

6. Written Submission----------------------------------------------------9

7. Prayer--------------------------------------------------------------------- 14
 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

LIST OF ABBREVIATIONS

AIR All India Report

SCC Supreme Court Cases

AC Appeal Cases

/ Or

Art. Article

E.g Exempli Gratia

Etc et cetra

v. Versus
 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

LIST OF CASES
1. Limited v. Md. Shafiq Khan, (2005) 8 SCC 46

2. Onkar Nath Mishra v. State of Haryana, (2005) 3 SCC 736

3. Karnataka State Road Transport Corporation v. Lakshmidevamma (Smt.) & Anr

4. MP Electricity Board v. Jagdish Chandra Sharma

LIST OF AUTHORITIES, STATUTES, CODES

1. Industrial Disputes Act, 1947
2. Constitution of India, 1920

Books

1. Misra S N, labour and Industrial Law(Central Publishing Agency, 19th edition)

(2016)

Websites

1. www.manupatrafast.in
2. www.lexisnexis.in
3. www.scconline.com
4. www.indiakanoon.org
 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

STATEMENT OF FACTS
1. 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.
2. Because of a financial crisis, the management was not in a position to supply firewood to
the workers. Management however promised to supply the firewood in instalments.
3. Respondent No.3 who belonged 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 where after the Manager and the Assistant Manager were gheraoed
demanding immediate fulfilment 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.
4. On 17-03-1994 respondent No.3 was placed under suspension and a show-cause notice
was issued against him on 30-03-1994.
5. 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.
6. On the basis of the inquiry report, respondent No. 3 was dismissed from service vide
order dated 12-09-1994.
7. 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.

8. 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.
 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

9. 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.
10. 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.
11. 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.
12. It is against this award that the present writ petition has been filed.
 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

STATEMENT OF ISSUES

1. 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?
 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

SUMMARY OF PLEADINGS
1. 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?

No, the management of Hukanpukhuri Tea Estate wasn’t justified in dismissing Shri Nimai
Dutta from service with immediate effect vide their letter No. A.8/82/94 dtd.12-09-1994

I. The charges levelled against the respondent no. 3 were wrong.

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.
 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

WRITTEN SUBMISSION
No, 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

The 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.
The 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.

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 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."
As per the factual narrative, respondent No. 3 was placed under suspension where after 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
 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

against respondent No. 3 stood proved. On the basis of such report, management dismissed
respondent No. 3 from service.
On remand, only respondent No. 3 gave further evidence where after the matter was heard
and the award passed. 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.
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.

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.
Reliance placed by Mr. Sarma, learned Counsel for the petitioner in the case of Obettee (P)
Ltd.1 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 Board2 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 Misra3 is also distinguishable because in that case during
the gherao

1
Limited v. Md. Shafiq Khan, (2005) 8 SCC 46
2
MP Electricity Board v. Jagdish Chandra Sharma
3
Onkar Nath Mishra v. State of Haryana, (2005) 3 SCC 736
 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

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.
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 sin Sambhu Nath Goyal v. Bank
of Baroda4, reported 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

4 (1983) 4 SCC
491
Memorandum on Behalf of The Respondent Page
11
 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

may lead to wrecking the morale of the workman and compel him to surrender which he may
not otherwise do."
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.
The Hon'ble Supreme Court in Karnataka State Road Transport Corporation v.
Lakshmidevamma (Smt.) & Anr.5, reported in 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 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.

I. The charges levelled against the respondent no. 3 were wrong.

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.
In so far charge No. 2 was concerned, Labour Court held that respondent No. 3 had led the
other workers in gheraoing the Manager and Assistant Manager in support of their demand.
Accordingly, charge No. 2 was held to be established against respondent No. 3. 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. As
regards

5 (2001) 5 SCC
43
Memorandum on Behalf of The Respondent Page
12
6 (2001) 5 SCC
43
Memorandum on Behalf of The Respondent Page
12
 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

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.

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.

Memorandum on Behalf of The Respondent Page 13

 The Manager Hukanpukhuri Tea Estate v State of Assam & ors

PRAYER FOR RELIEF

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited.
The respondent requests the Honourable Supreme Court of India to pass a decision and
declare that:

1. The appeal should not be allowed.

2. The decision of the Labour court should be followed.

And

Pass any other order which can be deemed fit in the spirit of justice, equity and
good conscience.

All of which is humbly submitted before the Honourable Supreme Court of India.

Date: 8th April 2019 Counsel for Respondent

Place: Delhi Atul Kumar Agrawal

Section- A,

Semester IV

Roll No. 37