WP(C) 3117/1999 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER This Court invoking power under certiorari jurisdiction, dismissed the writ peti tion being WP(C) No.3117/1999 filed by the Management M/s Kellyden Tea Estate on 27.09.2006, holding that the proviso to Section 33(2)(b) of the Industrial Disp utes Act, 1947 (in short ’Act’) has not been complied with which is a mandator y provision while seeking the approval of the order of dismissal from the learne d Labour Court thereby affirmed the judgment and order of the learned Court d ated 01.06.1999 passed in Case No. 2 of 1997. The order dated 27.9.2006 has bee n assailed before the writ appellate court whereby and whereunder the writ appe llate court set aside the order dated 27.09.2006 remitting the matter back to an swer all the questions raised in the pleadings which is now taken up for dispos al. 2. Heard Mr. SN Sharma, learned Senior counsel assisted by Mr. A Yahid, lea rned counsel for the petitioner. Also heard Ms. D Bora, learned State counsel ap pearing for respondent No.1 and Mr. A Dasgupta, learned counsel assisted by Mr. S Das, learned counsel appearing for respondent No.2. 3. Appearing for the petitioner, Mr. Sharma, learned Senior counsel has ass ailed the order dated 1.6.1999 passed by the learned Labour Court on the pleadin gs set forth viz,. a. The learned Labour Court has made out a new case which is neither pleade d by the management nor the workman while holding that the management has preven ted the workman from attending his job by way of involving him in the criminal c ase without taking into consideration the discharge note of the hospital, inclu ding the evidence of the workman which would go to show that the workman was n either in jail nor in hospital and as such the findings arrived at by the lea rned Labour Court is total non-application of mind requiring interference under certiorari jurisdiction. b. The learned Labour Court has committed an error apparent on the face of the record in holding that the management did not take any steps to serve the no tices upon the workman while he himself refused to accept the notices, meaning thereby that the workman knew the contents of the letter even though he was abse nting willfully without permission or leave which has been pleaded by the workm an in his written statement that he approached the management for allowing him t o rejoin in the month of June 1997 even after coming out of bail, that too, aft er about 6 months of absence without any leave or permission which amounts to n on-consideration of this vital aspect of the pleadings thereby vitiates the impu gned order under challenge. c. The registered letters sent to the workman on which the postal departmen t put a note, either not found or refuses to accept . Without considering th se registered letters and attendance register exhibited before the learned Labou r Court, the learned court brushed aside those materials on record in holding that non-examination of postal peon is fatal to the case of the management ba sed on the oral evidence of the workman but not on records exhibited by the mana gement which is apparent on the face of record wherefor the impugned order requi res interference. d. The service condition of the workman is regulated by the certified Stan ding Orders and under the certified Standing Orders, habitual absenteeism is a g ross misconduct for which the management has to proceed in accordance with the provisions of Standing Orders but the learned court has committed a wrong in holding that the absence from duty and the punishment of dismissal is too harsh and the management could have avoided the proceedings under Section 33(2) of the Act which is erroneous, thus deserves to be interfered with. e. The learned Labour Court has failed to consider the evidence adduced by the management including the records exhibited to prove the case of habitua l absenteeism on the part of the workman which vitiates the entire impugned o rder rendering the same liable to be set aside. f. A proceeding under Section 33 of the Act is not an industrial adjudic ation and Section 11-A of the Act would not be available, rather the court has t o see as to whether the management has complied with the proviso to section or not and whether the management has established a prima facie case or not requ iring approval of the action taken by the management wherefor the leaned court is not aware of the legal provisions of the Act when the learned Labour Court came to a finding that for absenteeism, the punishment for dismissal is too ha rsh and the management could have avoided the proceeding under Section 33(2) by imposing a punishment other than dismissal and the findings so arrived at is pe rverse and the same is liable to be set aside. g. The provisions under Section 33 of the Act puts only a bond on the manag ement so that during pendency of a reference, no workman is victimized for pendi ng reference and therefore, an application under Section 33 is not an industri al adjudication like that of a reference made under Section 10 of the Act and therefore the court has not been empowered to substitute the punishment under S ection 33(2)(b) of the Act whereof the learned court acted beyond its jurisdicti on by substituting the punishment including the order of re-instatement imposing cost and as such the same is liable to be set aside and quashed. h. The learned Labour Court has exceeded its jurisdiction in not according approval of the dismissal order of the workman which is not based on legal evide nce and documents exhibited by the management and the same cannot stand scrutiny of law, more so, the reasoning given are not in accordance with law and as such the impugned order of refusal to grant approval is entirely illegal and without jurisdiction which require interference in exercise of power under certiorari j urisdiction. 4. In the context of the pleadings set forth hereinabove, Mr. Sharma, learn ed Senior counsel would contend that the workman has admittedly remained absen t from his duties with effect from 16.10.1996 wherefor on 19.10.1996 and 25.10. 1996 show cause notices were issued to him in his garden’s address for remainin g absent. Thereafter the management had to issue warning letters asking the work man to resume his duties on 29.10.1996, 31.10.1996, 05.11.1996, 08.11.1996, 10.1 1.1996, 15.11.1996 and 19.11.1996, which, however, could not be served upon the workman as he was not found in his quarter and consequently thereupon charge sheet was issued for unauthorised absence but the same again could not be serve d upon him and accordingly on 17.12.1996 the charge sheet was forwarded by regi stered post to his garden address. 5. Mr. Sharma, learned Senior counsel referring to the pleadings would cont end that thereafter as no reply was received from the workman, the management de cided to hold inquiry into the charges by letter dated 04.01.1997. The said lett er was issued to the workman as well as it was hung in the notice board. The enq uiry was held ex-parte on 06.01.1997 wherein 4 (four) witnesses were examined an d attendance registers were exhibited and the enquiry officer gave his findin gs holding the charges being proved and forwarded his findings to the managemen t for doing the needful. The management on receipt of the enquiry report sent th e findings of the enquiry to the workman on 23.01.1997 asking him to submit his representation, if any. Thereafter the management issued a fresh letter on 07.0 2.1997 giving the workman a fresh opportunity to submit his representation or to appear in person before the management which of course did not yield any resul t and in view of such a situation, the management on 14.03.1997 dismissed the w orkman from service who was a permanent employee of the garden and filed an app lication under Section 33(2)(b) of the Act for approval of the action taken by t he management before the learned Labour Court whereon the learned court registe red a case being Case No. 2 of 1997. 6. In the proceedings before the learned Labour Court, the workman took the plea that he was in hospital wherefrom he was discharged on 05.07.1996. Thereaf ter, he was arrested on 17.10.1996 by police. He was released on bail on 25/26.1 2.1996 and if the contentions of the workman is believed then also the notice of enquiry dated 04.01.1997, the domestic enquiry which was held on 06.01.1997, t he forwarding letter of the findings of the enquiry officer dated 23.01.1997 as well as letter dated 07.02.1997 and the dismissal order dated 14.03.1997 were issued to the workman when he was not in jail and admittedly during this perio d he was absent from his duties and the workman’s own case is that he had ap proached the management after 16.10.1996 to allow him to join in his duty for th e first time on 28.06.1997 which would reveal that from December 1996 to June 1 997 he remained absent unauthorisedly and the management apart from adducing evi dence exhibited the attendance register to show that the workman was absent co ntinuously and registered letter vide Exhibits- 21, 22, 23 and 24, were retur ned/refused by the workman indicates that the dismissal order requires approval by the learned court, contended Mr. Sharma. However, the learned Labour Court d id not accord approval to the order of dismissal of the workman holding that the management has failed to examine the postal peon. On this point the learned Sen ior counsel referred the decision of the Apex Court reported in (2000) 1 LLJ 16 30 (Syndicate Bank -vs- GSSB Staff Association) wherein the Apex Court in paragr aph 15 of the judgment held that when a notice is sent on correct address wh ich was returned with the endorsement refused , then a clear presumption aros e that the addressee is aware about the contents of the notice and in such case postman is not required to be examined and on this ground alone the interferenc e is required holding that the learned court has committed an error apparent on the face of the record in not according approval of the order of dismissal, contended by Mr. Sharma. 7. Mr. Sharma would further contend that the learned Labour Court has commi tted an error apparent on the face of the record in holding that the award of di smissal for remaining absent is too heavy a punishment and the management could have avoided such situation by passing lesser punishment other than dismissal t hereby the management has taken the risk of their action being disapproved, wh ereas it is settled position of law that in an application under Section 33(2)( b) of the Act, the court cannot substitute the quantum of punishment awarded by the management and section 11-A of the Act has no application in an application under Section 33(2)(b) of the Act, more so, when it is a settled position of la w that approval of dismissal under Section 33(2)(b) is not an industrial adjud ication and even after granting approval under Section 33(2)(b), the workman is at liberty to raise an industrial dispute and get the dispute referred under Sec tion 10 of the Act, contended by the learned Senior counsel. Mr. Sharma further submitted that the findings of the learned court dated 01.06.1999 in case No. 2 of 1997 requires to be interfered with under certiorari jurisdiction. 8. In support of his contentions, Mr. Sharma has placed reliance on the fol lowing decisions: - 1. (2009) 4 LLJ 558 Gau (Md. Adul Rahim -vs- Management of Cachar Paper Mil l, HPC Ltd., Assam) 2. (2005) 4 GLT 635 (Indian Oil Corporation Ltd -vs- Presiding Officer & Ors.), 3. AIR 1978 SC 1004 (Lalla Ram -vs- Management of DCM, Chemical Works Ltd.) 4. AIR 1957 SC 326, (Caltex (India) Ltd. -vs- E. Fernandes and another) 5. AIR 1959 SC 923 (Sasa Musa Sugar Works Pvt. Ltd. -vs- Shobrati Khan), 6. (2006) 1 SCC 589 (State of Rajasthan and another -vs- Mohd. Ayub Naz) 9. On the contrary, Mr. Dasgupta, learned counsel appearing for the respond ent workman would contend that the order of dismissal dated 14.03.1997 mentionin g therein about the aforesaid payment was not served on the workman and the requ irement of the proviso to Section 33(2)(b) of the Act was not satisfied which i s not the basis on which the conclusion of the court in the writ proceeding has been recorded as held by the writ appellate court. The writ appellate court has further noticed that whether notices of the enquiry as well as the dismissal order were served on the workman or not is an issue that is inextricably linke d with the other issues arising in the writ petition which was not gone into by the Single Judge and therefore, left open to be determined by the Single Judge or else it would be prejudging the issues before the Single Judge which we re declined to be gone into. 10. Before dealing with the questions raised by the contesting parties aft er remand, it is noticed that in the earlier writ proceeding the record of Case No. 2 of 1997 was called for vide office note dated 19.08.1999 from the learned Labour Court, Guwahati but the same has not been received by the office of th is Court. It is also noticed that no affidavit-in-opposition has been filed by t he respondent No.2, workman in the writ proceeding. The record has also not been produced by the management petitioner for perusal of the Court wherefor the con testing parties submitted that the case may be heard on the basis of the pleadi ngs made in the writ petition and the annexeures appended thereto and accordin gly, the case was heard and disposed of. However, after the remand the record of Case No. 2 of 1997 was called for which is now available before the Court. 11. After receipt of the record from the Labour Court, the Court took up the matter for hearing. The record would reveal that after dismissal of the workman from service, the management has filed an application under Section 33(2)(b) of the Act before the Labour Court which was registered and numbered as Case N o. 2 of 1997. The learned Labour Court issued notices to both the parties askin g them to appear before the court. In pursuance to the notice, the workman enter ed appearance through his counsel by filing written statement. In his written st atement, the workman categorically stated that he had not received any charge sh eet, notice of enquiry and dismissal letter. He has further submitted that his l ong absence was due to hospitalization and jail custody. 12. Thereafter, the management in order to substantiate their action has ex amined 2(two) witnesses before the Labour Court to prove the enquiry, requiring approval of the dismissal order. The management also has exhibited all the notic es, the enquiry proceeding and its report, the attendance register and the lette rs which were refused and returned back to the management by the postal departme nt, whereas the workman in support of his case, has exhibited the discharge note of the Garden Hospital vide Ext A which would go to show that he was discharged from the Hospital on 06.10.1996. The workman has also produced the forwarding r eport by police which shows that he was arrested on 17.10.1996 under Sections 44 7/376/323 IPC and that he was in police custody for 67 days. The management was informed about the hospitalization and jail custody. After coming out of the jai l, he prayed for permission to join in his duties vide letter dated 28.6.1997. T he workman came to know about his dismissal from the notice of the Labour Court. 13. Thereafter, on the basis of the materials on record including the eviden ce led by the parties and after hearing the parties the learned Labour Court di d not accord approval to the application filed by the Management under Section 3 3(2)(b) of the Act on the basis of the following evidence led by the parties: - a. Shri Sikand was appointed as enquiry officer who has deposed that the no tice of enquiry was issued by the Senior Manager of the Tea Estate. He held the enquiry on 06.01.1997. The workman did not appear. He did not send any informati on. He waited for an hour. Then he proceeded with the enquiry. He recorded the s tatements of 4 (four) witnesses on behalf of the management. He verified the att endance register and found that the workman was really absent. He submitted his report marked as Ext-3. In cross-examination, he has stated that he is not an employee o f Kellyden T.E. but of Tata Tea Co. At the relevant time, he was Asstt. Manager of Tata Tea. He did not issue any separate notice from his side. He is not aware whether the notice issued by the manager was received by the workman; b. Shri Rup Gohain has examined himself as PW 2 before the learned Labour C ourt who has deposed that he has been working in Kellyden T.E. as Deputy Gener al Manager since June 1995. He knows Ananta Tanti. Ext-4 is the Attendance Regis ter from 13.10.1996. Exts 5, 6 and 7 are also Attendance Resisters. He has prove d the signatures of the sender of the notices including charge sheet. Ext 18 was sent forwarding the domestic enquiry report and final report informing the work man that an enquiry was held on 6.1.1997. This was hung on the notice board as i t could not be served personally. The workman was dismissed vide letter dated 14 .03.1997. He has further stated that as there was a case pending before the Asss itant Labour Commissioner and the Conciliation Officer, Govt. of Assam, the wor kman was offered one month’s wages and the application was filed as provided un der Section 33(2)(b) of the Act. The notices sent by registered post were refus ed by the workman as had been stated by the postal peon. In cross-examination, PW 2 stated that the workman’s wife is als o working as a permanent worker in the same garden. Ext- A is the discharge note issued by the doctor of the Garden Hospital. He heard about the criminal case a gainst the workman. He, however, denied the suggestion that the notices were not sent but false report about them obtained. 14. In the proceeding before the learned Labour Court the workman has depose d that he lives inside the colony. He has two wives and both of them are permane nt worker in the garden. He was injured by the relatives of his second wife nece ssitating hospitalization. Ext-A was issued by the hospital authority on 6.10.19 96. He was in hospital for about 20 days. Ext B & C related to the police case. He was treated by the Government doctor and Ext-D is the prescription dated 16.1 0.1996. He moved the garden authorities to allow him to join after he was cured. The authority refused to allow. He was in police custody for 67 days. Ext F is the certified copies of the order sheet and judgment. Ext E is the certified cop y of the FIR. He has never received any notice asking him to join in his duties. He did not receive any notice about the domestic enquiry. No postal peon went t o him to deliver any letter. His wife also did not receive any notice. No notice was tendered to his family members. Ext 24 was not refused by him, so also Ext s 21, 22 and 23. Ext-H dated 28.6.1997 was submitted by him before the Garden au thority praying therein to allow him to join. 15. The learned trial Court on the evidence on record dealt with the matters in two parts. The first part relates to domestic enquiry. The second part relat es to establishment of a prima facie case for dismissal requiring approval of th e court under Section 33(2)(b) of the Act. 16. In the first part the learned trial Court on the admission of the Manage ment has held that an Industrial dispute was pending requiring approval of the c ourt as required under Section 33(2)(b) of the Act and therefore, the learned co urt did not take up the preliminary issue relating to domestic inquiry as well, since the management have adduced evidence on merit in addition to its claim on the basis of domestic enquiry. The enquiry officer PW 1 has deposed that he has no personal knowledge about the service of notice and none of the notic es preceding the dismissal were served personally on the workman. Similarly PW 2 does not have any knowledge relating to service of notice, whereas the workman in his deposition has denied service of notice and denied to have tender any su ch notice by the postal peon, thereby refused any tender of notice. Therefore, i t was incumbent upon the management to examine the postal peon including the gar den chowkidar involved in the notice serving process which the management has fa iled. Therefore, the learned court has held that a domestic enquiry without the service of notice in an acceptable manner is tainted with the vice of failure to follow the rules of natural justice since the non-availability at home or the r efusal to accept the notices by the workman have not been proved in the desired manner even to meet the standard of a tribunal and hence the court was not inc lined to hold that the domestic enquiry was fairly conducted. 17. In regard to the second part, the learned Labour Court has given the we ightage of the evidence of Shri PC Choudhury, Senior General Manager of Kelly den TE relating to the police case being Kaliabor PS Case No. 59/96, due to whi ch, the workman had been kept out of the job by the authority vide Ext E. Ext D is a prescription dated 16.10.1996 (the date of first absence of the workman) r elating to ailments of the workman. Moreover, the trial Court observed that the Kaliabor PS Case No. 56/96 under Sections 447/376 IPC reported on 16.10.1996, i .e. the date of absence of the workman, though the date of occurrence was 18.09 .1996 which shows that the Senior General Manager of the garden was the witness No.1 in the FIR. However, in the Sessions Case No.5 (N) 98 arising out of afore said Police Station Case, while acquitting the workman (accused) from the charge s levelled against him vide judgment dated 20.2.1998 (Ext. F), the learned trial Court held as thus, It is clear that there is not even an iota of incriminatin g evidence on record implicating the accused & & &. which would go to show that t e materials placed is nothing but the involvement of the management in launching the prosecution against the workman whereby the circumstances so created to com pel the workman to remain absent in order to enable the authorities to take acti on against the workman. The learned court has further observed that the explanat ion given by the workman for his absence cannot be brushed aside, wherein, for a bsence dismissal was too heavy punishment which amounts to an unfair labour pra ctice as envisaged in the Fifth Schedule 1-5(f)(g) of the Act, whereof the mana gement could have avoided the steps taken under the proviso to Section 33(2) of the Act wherefor