IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11874 of 2000 MUZAFFARPUR ZILA KHADI GRAMODYOG SANGH Versus THE STATE OF BIHAR & ANR ----------- 4. 29.1.2009 Heard Mr. Shivaji Pandey, learned counsel for the petitioner and Mr. K.N.Gupta, learned counsel for the complainant employee, respondent no.2. The employer, the writ petitioner, Muzaffarpur Zila Khadi Gramodyog Sangh, (hereinafter referred to as ‘Khadi Sangh) has assailed the order passed by the Labour Court dated 1st September, 2000 in B.S.E. Case No. 2/1983 directing reinstatement of respondent no.2 with full back wages and benefits. The facts giving rise to this writ application, which would be necessary for taking into account for appreciating the argument of the counsel for the petitioner, are that the respondent no.2 was a permanent employee of the said Khadi Sangh and was in service since 1978. On 28.7.1980 respondent no.2 was slammed with a show cause notice as to why he should not be dismissed from service on the ground that he was unauthorizedly absent from duty on or after 2 14.7.1980. Respondent no.2 had submitted his reply on 15.8.1980 wherein it had been explained that the reasons for unauthorized absence was his own illness, suffering from heart ailment, and as such, he had in fact proceeded on leave after submitting his application on 14.7.1980 through one Kedar Nath Tiwary, Accountant. Respondent no.2 is also said to have explained in his reply that on account of his personal ailment for which he had proceeded on leave after filing his application he was not in a position to work at the place of his posting and as such, he should be allowed to join at any other place, so that he could recover from the ailments like Jaundice and heart diseases. There is at least nothing on record as to what happened after 15.8.1980 and in fact it is the case of respondent no.2 that when neither he was allowed to join the duty nor was paid the salary he had filed Misc. Case No. 21 of 1982 before the Labour Court for payment of his back wages and in the written statement filed by the employer petitioner on 18.11.1982 a plea was taken that respondent no.2 no longer continued in 3 service as he had already been dismissed on 3.8.1982. Respondent no.2 thereafter had filed the present case on 14.2.1983 making a prayer that his order of dismissal from service was bad and in violation of the provisions of section 26 of the Bihar Shops and Establishment Act. That is how the present case B.S.E.No. 2/1983 came into existence. The Labour Court in its well considered judgment running into 16 pages has considered each and every aspect that was raised before it and Mr. Shivaji Pandey, learned counsel, while assailing the said judgment had confined himself to the following four submissions: (i)The application filed by respondent no.2 was barred by limitation, inasmuch as such order of dismissal was passed on 3.8.1982 and the complaint was filed on 14.2.1983 and as such, when there was no application for condonation of delay such application was clearly barred in terms of section 26(2) of the Act. (ii)He next contended that respondent no.2 was dismissed from service on charges of misconduct and therefore, the 4 finding recorded by the Labour Court that such charge of misconduct was not proved is contrary to the materials on record. In this regard Mr. Pandey want to the extent that even if the Labour Court had held that there was no enquiry as with regard to aforementioned misconduct, it was then incumbent for the Labour Court to hold an enquiry and record a finding as to whether the charges of misconduct against the Respondent no. 2 was proved or not. (iii)As a corollary to the aforementioned submission Mr. Pandey then proceeded to make a submission that if it was to be held that the order of dismissal of respondent no.2 from service was on a misconduct, there would be no application of section 26(1) requiring notice on payment of compensation as envisaged therein. (iv)Finally Mr. Pandey has also submitted that even if all the findings of the Labour Court are taken to be correct its direction for reinstatement of respondent no.2 in service suffers from an apparent error, inasmuch as there was a compelling material for the employer petitioner not to take him back in service as there was 5 already a criminal case filed against respondent no.2 with serious allegations of misappropriation and embezzlement of fund of Khadi Sangh. The point of limitation which has been raised by Mr. Pandey has to be examined in the light of the findings recorded by the Labour Court which has considered this aspect at great length in paragraphs 7 and 8 to hold that the application was not barred by limitation. Before such findings are taken into account one has to take the spirit of section 26(2) to find out as to what is the beginning point of limitation? In section 26(2) of the Act the beginning point of limitation is the date of the receipt of the order of dismissal and therefore, once the plea of limitation was raised by the employer petitioner the onus was on the petitioner to prove that as to what was the actual date of service of order of dismissal of respondent no.2. Unfortunately the management petitioner has miserably failed to prove any such date and in fact not only in the written statement filed before the Labour Court no specific date was suggested to be the date of service 6 of order of dismissal and/or receipt of the order of dismissal by respondent no.2, but even before this Court Mr. Pandey could not pin point any such specific date. What has been actually sought to be contended by Mr. Pandey before this Court in fact was noted by the court below that such order of dismissal was sent by registered post and there was an acknowledgement (A/D) to show such service of order of dismissal on respondent no.2. Mr. Pandey in fact had produced a copy of such A/D before this Court which would go to show that neither there is a legible signature of respondent no.2 nor any date is mentioned therein. Apart from the fact that the said A/D only bears the date of its being sent i.e. 3.8.1982, it does not thereafter throw any light on the date of its service on the employee i.e. Respondent no. 2. It is however not the end of matter. As a matter of fact that such faint copy of A/D was also produced before the Labour Court without producing its original copy and the Labour Court under such circumstances, in absence of any connecting evidence to show as to what was the date of service of such order 7 of dismissal on Respondent no. 2. The Labour Court having analyzed the materials on record had thus rightly come to a conclusion that the application was not barred by limitation, especially when respondent no.2 had claimed acquiring knowledge of the order of dismissal in the pending case filed by him claiming salary against some employer. There is no dispute that an earlier case was filed by respondent no.2 for claiming payment of wages and in that case the defence taken by the petitioner was that respondent no.2 had already been removed from service. In such position the analogy and reasonings of the court below of acquiring knowledge of the order of dismissal by respondent no.2 on 18.11.1982 does not suffer from any infirmity or error. Calculating from 18.11.1982, if the application was filed by respondent no.2 on 14.2.1983 that would be well within the period of 90 days and as such, the plea of the petitioner that the application was barred by limitation has no merit. The next question vehemently argued by Mr. Pandey with regard to the charges having been not proved and the finding 8 recorded by the Labour Court that the charges were never proved, is an incorrect finding based on incorrect appreciation of the materials on record, is also fit to be rejected. There is no difficulty in coming to this conclusion that there was no memo of charge specifically framed against the petitioner, and infact Mr. Pandey has himself accepted before this Court that save and except suspension cum show cause notice there is no document which can be held as charge sheet. The document dated 28.7.1980 which is Annexure 6/1 to this writ application would only go to show that respondent no.2 was placed under suspension and was directed to file his reply as to why he should not be removed from service. Obviously a charge sheet could have not been framed in this manner and in the opinion of this Court at least Annexure 6/1 being suspension order, cannot be held a charge sheet. Once this finding is recorded that there was no charge sheet against Respondent no. 2 and in fact the letter dated 28.7.1980 was only a show cause notice asking respondent no.2 to explain as to why he should not be removed from service, there 9 would be no difficulty in holding that there was no scope of departmental proceeding because it was never contemplated in the said letter dated 28.7.1980 as to any enquiry was to be held. That apart nothing was brought on record that after 28.7.1980 the petitioner had informed either about rejection of the show cause filed by respondent no.2 on 15.8.1980 or had thereafter taken a decision that there would be a proper enquiry. In fact the Labour Court has gone into this aspect at great length with the help of the documents and has held that there was nothing to show that respondent no.2 was even sought to be conveyed of a decision by the petitioner as with regard to holding of such enquiry. The Labour Court has examined so called correctness of the alleged notice and has found that even the person who is said to have served the notice of enquiry on Respondent no. 2 was neither an employee nor his name was mentioned even in the order sheet of the Enquiry Officer. That however is not the end of the matter. The Labour Court in fact has also examined the so called Enquiry Officer and his enquiry 10 report and from them it has been inferred that the plea of enquiry was a subsequent defence developed after respondent no.2 had filed the present complaint case under section 26 of the Act. One more significant aspect would expose the hollowness of the learned counsel for the petitioner. An enquiry was held as is now the case of the employer either before the Labour Court or this Court. Then a question would arise what was the finding arrived in the enquiry. Obviously the finding of the Enquiry Officer is recorded in the order sheet. The next question would be whether that copy of the enquiry was confronted to the workman respondent no.2. There is absolutely no answer to all these aspects because it was never the case of the petitioner before the Labour Court that a proper procedure of enquiry was followed, rather all that was sought to be conveyed was that some sort of enquiry was conducted. The requirement of section 26, however, is not that any sort of plea/ defence of enquiry of the employer has to be accepted. Section 26 talks of that if a plea of dismissal is taken by an employer, the 11 same must be for a reasonable cause and must be supported by the satisfactory evidence recorded at an enquiry held for that purpose. The question would be who was examined at that enquiry to prove the charges against Respondent no. 2 even if the workman respondent no.2 had not appeared in the enquiry. Nothing was brought on record of this effect to show that the Enquiry Officer had proceeded on the basis of some materials (evidence) produced before him or by examining any witnesses. The whole story of enquiry of the petitioner against Respondent no. 2, therefore, becomes completely doubtful when it is found that even the copy of the enquiry report was not sought to be served on respondent no.2. In such view of the matter, the finding recorded by the Labour Court that the plea of such enquiry conducted by the petitioner prior to the order of dismissal dated 3.8.1982, in the opinion of this Court, has been rightly considered and rejected and therefore, there would be no scope for any interference on that score. Since the plea of the petitioner as with regard to there being a full-fledged 12 enquiry has itself failed, a question which would arise is, was the Labour Court required to look into this aspect of misconduct of respondent no.2 for fixing the guilt as has been sought to be projected by the counsel of the petitioner. One could have look into the memo of charge for that purpose and as I have already held there was no memo of charge the only allegation that remains about that the Respondent no. 2 was absence from the duty between 14.7.1980 to 28.7.1980. The answer given by respondent no.2 even in the show cause reply dated 15.8.1980 as also before the Labour Court had by itself established that the Respondent no. 2 had already proceeded on leave after filing of the application. Filing of application of respondent no.2 for proceeding on leave has, therefore, been accepted and there is nothing for this Court to disbelieve this finding of fact specially when no attempt has been made by the counsel for the petitioner to assail that part of finding. Once that position becomes admitted, can it be said that it was a misconduct on the part of the workman respondent no.2 suffering from disease like 13 heart ailment/ history of jaundice to proceed on leave initially for five days after giving due information to the employer. In the opinion of this Court once this aspect becomes admitted that the workman had proceeded on leave after submitting his application, there would be no question of his being unauthorized absent. It is a different thing altogether, had his leave application been cancelled and he had been informed that prayer for his leave had been rejected. In that event the petitioner was justified in drawing a departmental proceeding against Respondent no. 2 by framing a charge of disobedience and dereliction of duty. That, however, is not the case of the petitioner. Once this position becomes clear that the act of respondent no.2, therefore, was not even the misconduct, there was no question for the Labour Court to hold another enquiry or give an opportunity to the petitioner to prove the correctness of the non-existent charge. The Labour Court, therefore has committed no procedural infirmity in holding that the plea of misconduct or enquiry against 14 respondent no.2 was itself ill founded. Once this position becomes clear, that respondent no.2 was sought to be removed even without any misconduct and/or charge sheet, his dismissal definitely will be one which will be covered by section 26(1) of the Act which classifies dismissal into two parts, namely, dismissal for a reasonable cause or otherwise. There being no charge sheet, there being no misconduct on the part of respondent no.2, if he was sought to be removed from service without compliance of the provisions of section 26(1) requiring payment of one month’s notice or one month’s wages in lieu thereof, there would be no difficulty in rejecting that part of submission of Mr. Pandey that section 26(1) of the Act was not applicable. The submission of Mr. Pandey that the Labour Court had erred in directing reinstatement of respondent no.2 is also misconceived. The only circumstance placed before this Court for denying reinstatement to respondent no.2 is a First Information Report dated 14.5.1983 and it is said that in view of the allegation of misappropriation/ embezzlement on the part 15 of respondent no.2 as alleged in that F.I.R, there was enough material for the employer to have lost faith in the employee (respondent no.2) and therefore, the reinstatement should not have been directed. Such submission of the counsel for the petitioner has to be only noted for its being rejected. It is so because one has to go with the history of this litigation. The workman respondent no.2 was agitating for his payment of salary and that is how he had filed his first case in the year 1982. His salary was not paid and he was shown the door by taking a plea that his service has already been terminated. Thereafter he had filed the present case against his dismissal from service on 14.2.1983 and after this case was lodged and notice of this case was served on the employer the criminal case was filed on 14.5.1983. Mr. Pandey till date is not in a position to explain as to what happened in that criminal case. In such a situation it would be difficult for this Court as also the Labour Court to take any adverse view against the Respondent no. 2 in as much as the allegation made in the F.I.R. will still remain the allegation which may 16 also be a counter defence of the employer to deny reinstatement of the services to respondent no.2. In that view of the matter, the reliance placed by Mr. Pandey on the judgment of the Apex Court in the case of M/s Hindustan Steels Ltd., Rourkela vs. A.K. Roy & ors., reported in AIR 1970 S.C. 1401, is wholly misplaced. It is not that in each and every case the moment the Labour Court would find that there was strained relationship between the employee and the employer, the reinstatement as a rule has to be refused. That is because in every case there would be strained relationship when the employee will be subjected to legal proceeding at the instance of the employer. Can it be said that in every case reinstatement has to be refused? The answer would be obviously in negative. More over, as noted above, the only circumstance being loss of faith being the reason for not allowing reinstatement itself being based on material which was brought in existence after the litigation was already started at the instance of respondent no.2 that by itself can hardly be a ground for refusing the reinstatement. 17 As a matter of fact it is not bonafide on the part of the employer petitioner to even raise this question of reinstatement. This Court would find that the order of the Labour Court dated 1st September, 2000 despite being not stayed by this Court for a period of over 8 ½ years has not yet been implemented. One could have understood the bonafide of the petitioner, had the petitioner after refusal of stay by this Court in the order dated 23.11.2000 at least reinstated the workman respondent no.2 in service subject to result of this writ application. The net result is that respondent no.2 ever since 28.7.1980 for a period of almost 29 years now has been suffering on account of unfair labour practice adopted by the employer petitioner. In such view of the matter, the plea of Mr. Pandey that now respondent no.2 must have reached the age of superannuation and therefore, the management will not be required to reinstate him, has to be noted for its being rejected. There would be no question of reinstatement from the date of completion of age of superannuation but then since the order of reinstatement is with 18 back wages, an order will have to be passed by the petitioner for his reinstatement up to the date of his retirement and for other consequential benefits based on such reinstatement. That having been not done till date despite there was no order of stay by this Court, the petitioner must be held to have conveniently flouted the orders of the Labour Court for a period of over 8 ½ years. Be that as it may, this Court would not find any merit in this writ application and accordingly, the same is dismissed. As noted above, it was the sheer callousness and negligence attitude on the part of the employer to have kept the employee respondent no.2 of his payment of salary and reinstatement even after the order of the Labour Court and therefore, this Court while dismissing this writ application would not only direct for all consequential benefits flouting out of the order of the Labour Court within a period of one month from the date of receipt/ production of a copy of this order, but also payment of exemplary cost of Rs. 25,000/- for the suffering and mental agony caused 19 to respondent no.2. Since the order has been passed in presence of the Secretary of the petitioner who was summoned on the last occasion, it is expected that the Secretary without waiting for the service of copy of this order would definitely comply the present order of this Court in letter and spirit. (Mihir Kumar Jha,J.) Surendra/