WP(C) 944/2003 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA By means of this writ petition, the petitioner has challenged the award dated 28.5.2002 passed by the Learned Labour Court, Dibrugarh in reference case No. 13/2001, answering the particular reference in favour of the Management resp ondent Tea Estate. 2. The Govt. of Assam vide its notification dated 5.7.2001 made the followi ng reference for adjudication by the learned Labour Court :- Whether the Management of Hukanpukhuri Tea Estate, P.O. Tinsukia is justified i n terminating the services of (1) Sri Debaru Karmakar, (2) Smt. Saraswati Bhumiz , (3) Sri Deepak Mormu, (4) Sri Shyam Tanti, (5) Sri Nara Mura, (6) Sri Madan Mo hali, (7) Sri Misra Modi, (8) Sri Rabi Modi, (9) Sri Mathura Patra, (10) Sri Sur ya Tanti, (11) Sri Arjun Manjhi, (12) Sri Bilashi Murmu, (13) Sri Shyam Singh Bh umiz, (14) Binod Patra, (15) Smt. Anjali Kharia, (16) Smt. Tula Tanti, (17) Smt. Lamori Modi, (18) Sri Shosen Modi (19) Smt. Alomoni on the charges of gross mis -conduct. If not, whether all of them should be re-instated with full back-wages or any ot her relief in liew thereof . 3. The aforesaid reference having been answered in the negative against the workmen by the impugned award dated 28.5.2002, the petitioner has invoked the w rit jurisdiction of this Court towards assailing the said award. 4. I have heard Mr. G.P. Bhowmik, learned counsel for the petitioner as wel l as Mr. G.N. Shahewalla, learned senior counsel assisted by Mr. P. Deka, learne d counsel for the respondent Tea Estate. While Mr. Bhowmik, learned counsel for the petitioner submits that it is a case of no evidence at all and that the char ge against each one of the workmen being one and the same, no departmental enqui ry could have been initiated and completed on that basis, Mr. Shahewalla, learne d senior counsel appearing for the respondent Tea Estate submits that it being n ot a case of no evidence and / or wrong appreciation of evidence, this Court exe rcising its power of judicial review under Article 226 of the Constitution of In dia will not sit on appeal over the findings recorded by the learned Labour Cour t in appreciation of the evidence on record. 5. Another submission made by Mr. Bhowmik, leaned counsel for the petitione r is that the penalty imposed being disproportionate to the gravity of the offen ce, same is liable to be interfered with. On this, Mr. Shahewalla, learned senio r counsel for the respondent Tea Estate submits that having regard to the nature of the incident and the misconduct proved against the workmen, the penalty imp osed is adequate and not liable to be interfered with. 6. I have considered the rival submissions made by the learned counsel for the parties and the entire materials on record including the LCR. 7. From the materials on record, it appears that a common departmental dome stic enquiry was conducted against the workmen numbering 19(nineteen). The charg es against the workmen was as follows :- (i) That, on 01.03.99 at about 2-30 p.m. you alongwith a few other workers a nd with an ulterior motive, organized an unlawful assembly in the office premise s and them trespassed into the office of the Dy. Manager, Shri N. Kalita, withou t his leave or permission and demanded him of the payment of fire-wood compensat ion on the date in a rude and indisciplined manner. (ii) That, when the Dy. Manager, Shri N. Kalita explained to you that as sugg ested by the Garden Unit A.C.M.S., the matter was not discussed between the Secr etary, A.C.M.S., Panitola Branch and the Manager of the Garden and the payment h ad not been arranged. You became agitated, behaved rudely disrespectfully toward s him by shouting at the top of your voice, hurling abusive language, thumping o n the table and stating you must make the payment of fire-wood compensation tod ay, otherwise we will not leave you alive . (iii) That, thereafter, you alongwith your associates assaulted him with fists and blows, tore his shirt and the vests broke and snatched his wrist watch and dragged him out into the office veranda with bare food and thereby, caused sever e injuries to his body, mind and the reputation and also damaged the furniture o f the office, disconnecting the telephone lines. (iv) That, apprehending a serious danger to the life of the Dy. Manager, Shri N. Kalita, when the garden Asstt. And members of the staff, intervened into the matte and requested you all to desist from the assaultings and pushed him first into the office room and then into the toilet and got the doors bolted from out side and inside for safety of his life. You disobeyed theirwise counsel, followe d upto the toilet and tried to break open the door by shouting Chala Kutaku Mar o, Khatam Koro . (v) That, breaking open toilet door by force, you again started assaulting t he Dy. Manager, Shri N. Kalita, with blunt weapons and caused him profused bleed ings till he was dragged out and taken in a precarious condition by Shrimati Pus papatra to the Gola-shop situated on the nearby N.H. 37 to compel him to make a phone call to his Principal for arrangement of the fire-wood compensation. (vi) That on the N.H. 37 on the way to the Gola-shop, you not only hicked him and assaulting him in the nacked body causing him severe injuries and profused bleedings but also conspired to kill him and accordingly pushed him before the m oving vehicles to cause an instant death. The conspiracy and the attempt to murd er were thwarted by the timely intervention by one outsider Shri Chandra Pradhan who escorted him to the Gola-shop and guarded him there till to the arrival of the police to safe his life. 8. On perusal of the aforesaid charge, what is seen is that the incident in which the workmen were allegedly involved was of serious nature not only concer ning the discipline of the Tea Estate but also endangering the life and property of the Tea Estate. The moot question which falls for consideration is as to whe ther each one of the workmen was involved in the incident. It is in this context , Mr. Bhowmik, learned counsel for the petitioner has submitted that without ide ntifying the individual workmen, all the workmen could not have been held respon sible for the incident / misconduct by the Enquiry Officer, who conducted the do mestic enquiry. On the other hand, Mr. Shahewalla, learned counsel appearing for the respondent Tea Estate has submitted that when the workmen constituted a wro ngful assembly and entered into the office of the victim officer and thereafter assaulted him in the manner reflected in the charges referred to above, it will not be a case of individual identification for individual act but all the workme n responsible for the incident, will have to be treated collectively. 9. From the materials on record it appears that the Management by its petit ion No, 865/2001 made under Section 33 of the Indian Evidence Act, tendered the evidence and documents in MC 3/2000, 4/2000 and 5/2000 in the reference through MW-I. By the said petition, approval of the action taken by the management again st the workmen by way of issuance of dismissal letters dated 5.10.1999 for commi tting the gross misconduct on 8.3.99 was sought for. 10. The workmen side also examined 2 (two) witnesses in support of their ple as. In consideration of the evidence on record, the learned Labour Court was to answer the question as to whether the dismissal orders issued against the workme n were valid and was so passed after a proper enquiry. It was argued before the learned Labour Court on behalf of the workmen that the findings of the Enquiry O fficer was not based on evidence and that the findings are perverse. It was also argued that although separate charge sheets had been issued to each one of the workmen but same being in verbatim, there could not be an enquiry on the same se t of charge against each one of the workmen. 11. The learned Labour Court in consideration of the entire materials on rec ord found that the victim was assaulted on the fateful day by the workmen when t heir demand for payment of fire-wood allowance could not be met by him. It is in evidence that the representatives of the workmen who had entered into the offic e chamber of the victim officer had been given the same reply regarding inabilit y to pay the fire-wood allowance. Things started happening thereafter and the vi ctim officer was gharrowed by the workmen. Initially, they started shouting for payment of the allowance and within minutes there was huge gathering involving t he workmen and they all took recourse to the misconduct as attributed to them in the aforementioned charges. 12. In the domestic enquiry, the misconduct attributed against the workmen w as established and the said domestic enquiry was proved in the reference proceed ing before the learned Labour Court. The learned Labour Court did not find anyth ing to discard the domestic enquiry. 13. From the evidence recorded by the Enquiry officer, it was proved that th e delinquent workmen formed in unlawful assembly on 1.3.1999 in front of the vic tim Officer’s office with a common object to assault him, use of force or violen ce by an unlawful agency or in number thereof in prosecution of a common object. Such an assembly is evident in the proceeding. 14. In the enquiry, the victim officer was examined who described the entire incident in detail and also identified the workmen who were involved in the rio ting. It has rightly been observed by the learned Labour Court that issuance of individual charge sheet in verbatim to all the workmen will not make any differe nce, inasmuch as, the enquiry conducted against the workmen was a common one and infact a common charge sheet would have done. 15. On perusal of the impugned award, what is found is that the learned Labo ur has discussed in detail the entire evidence on record so as to answer the ref erence against the workmen and in favour of the respondent Tea Estate. 16. At this stage, Mr. Bhowmik, learned counsel for the petitioner upon a re ference to the criminal proceeding in relation to the said incident has submitte d that out of the 19 workmen, only 6 (six) having been convicted in the criminal proceeding, the remaining 13 workmen are entitled to get reinstatement in servi ce. He also submits that the domestic enquiry ought not to have been conducted a nd should have been kept in abeyance till finalization of the criminal proceedin g. At this, Mr. Shahewalla, learned counsel for the respondent TE, bringing the distinction of the principles involved in criminal proceeding and domestic enqui ry towards establishing guilt, submits that pendency of the criminal proceeding was no bar for the Management to conduct the domestic enquiry. 17. Law is well settled that mere pendency of a criminal proceeding cannot s tand on the way of the Disciplinary Authority to conduct domestic enquiry. Law i s also well settled that while in a departmental proceeding a charge can be said to have ben established on preponderance of all probability, in a criminal proc eeding, the establishment of guilt must be beyond all reasonable doubt. The crim inal case was answered with the conviction of at-least 6(six) workmen out of 19 workmen will rather go to show that the incident was established and some of the workmen were also held criminally liable for the same. In the domestic enquiry, the management was concerned with the misconduct of the workmen relating to the incident. Such misconduct having been established in the domestic enquiry, abou t which mention has been made in the impugned award and the findings recorded in the domestic enquiry, and the same having been accepted by the learned Labour C ourt, this Court exercising its power of judicial review under Article 226 of th e Constitution of India, cannot sit on appeal over such finding recorded by the Fact Finding Authority. 17. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly it is dismissed.