Ram Bilash Goel Vs The Management of Lakwa Tea Estate and Another

K.N. Saikia, J.@mdashThe writ application impugns the award of the labour Court, Dibrugarh in Reference No. 6 of 1972 holding that the domestic enquiry was fair and the management was justified in dismissing the Petitioner.

2. The Petitioner served in the Lakwa Tea Estate as Cashier till 1969 and thereafter as Mohorer till the relevant time and, as such, had to work beyond the normal duty hours of 8 A.M. to 5 P.M. for which he submitted overtime bills on 6.9.70 for the months of May to August, 1970. The Manager having refused to accept the bills, he resubmitted those by registered post and the Manager returned those by registered post with a letter dated 18.9.70 (Annexure I) which stated:

I am surprised to have received your Will for overtime work. In this connection. I have to write that neither the management bad asked you at any time to do any overtime work nor you had obtained any prior permission for such matter. As such the management cannot entertain any such claim.

Hence your above referred bills are returned herewith.

3. The Petitioner thereafter stopped working beyond 5 P.M. on 19.9.70 and 22.9.70 for which he was asked to explain vide management''s letter dated 23.9.70 (Annexure 2), by 25.9.70, as to why disciplinary action should not be taken against him. beyond 5 P.M. being bound by the order in the management''s letter dated 18.9.70, the Manager wrote the following letter dated 5.10.70, (Annexure 3).

I am in receipt of your letter dated 26th September, 1970 which is not at all satisfactory. Being a women Mohorer, you are supposed to make the physical checking of the women workers every day at the worksite, to prepare their wages, to take the weighment of the leaf everyday and also to be present at the time of wages payment. You may also have to do other duties as assigned to you by the management from time to time.

The management will not like that you should overstrain or devote much more time than the usual duty hours. But it is certainly expected that you will have to complete your duties properly within the normal time as it is being done in this garden and in other gardens as a matter of practice. However, we may have not any objection if you can adjust your timings according to the duties but we are interested to see that you perform your duties efficiently without causing any dislocation in the working of the garden.

It has been observed that you are taking plea and leave the garden work at 5.00 P.M. (G.T) which is an act of irresponsibility and your this conduct causes dislocation and disturbance in the smooth working of the garden.

I would, therefore, advise you to refrain from taking such steps which is subversive of discipline and you should complete your duties assigned to you making the adjustment of timings as per the convenience of the situation with our knowledge.

If, you still do not come upto the expectation of the management and if you are unable to perform your normal duties properly, we will have no other alternative than to take disciplinary action in the matter as per the laid down principles you are under observation.

4. The Petitioner having refused to work beyond 5 P.M. even thereafter, he was charged on 19.10.70 as under:

You are charged having committed the following offences:

1. (a) That you have not attended the work of leaf weighment and wages payment which were included in you normal duties which were being performed by you as practice.

(b) That you have knowingly and wilfully disobeyed the reasonable instructions of the management when you were directed to attend to wages payment and leaf weighment vide this office letter No. LTE/4/70 dated 5.10.70.

(c) That you are also wilfully neglecting the work of the garden and you have not been working in the garden even after the receipt of our letter No. LTE/4/70 dated 5.10.70.

2. If the charges are proved, they will constitute gross misconduct and action will be taken against you accordingly,

3. Your written explanation on the above charges should reach the undersigned at this office for due consideration within 48 (forty eight) hours after the receipt of this letter,

4. You will be further given a personal hearing to enquire into the matter if your explanation would not be found satisfactory.

5. Given only 48 hours after the receipt of the charges, the Petitioner prayed for 7 days time, but was given only one day more. Consequently the Petitioner hurriedly gave his explanation on 23.10.70 denying the charges of negligence and misconduct. A domestic enquiry was held by the Manager of Khona T.E. on 13.11.70 and 23.11.70 culminating in, Petitioner''s dismissal by letter dated 5.12.70 (Annexure-5).

6. Thereafter an industrial dispute was raised, and conciliation having failed, the appropriate Government referred the dispute between the management for Lakwa Tea Estate and their workmen, represented by the Assam Chah Karmachari Sangha, Dibrugarh for adjudication by the Labour Court, Assam at Dibrugarh on the following issues:

(i) Whether the Management of Lakwa Tea Estate were justified in dismissing Shri R.B. Goel ?

(ii) If not, is he entitled to reinstatement with all benefit against the period of non-employment or any other relief in lieu thereof ?

The Labour Court registered it as Reference No. 6/72, in which both the Management and the Sangha filed written statements. On the date of hearing, allowing the management''s prayer, the Court decided to hear as preliminary point the question whether the domestic enquiry was fair ? The Management examined one witness, being the Enquiry officer, while thei Sangha examined none. In its award dated 10.10.74 the Labour Court held, that the domestic enquiry was fair and there was no violation of the principles of natural justice: that the management was not guilty of victimisation, unfair labour practice or malafide; and that the management were justified in dismissing the Petitioner. Hence this writ petition.

7. Mr. B.M. Mahanta, the learned Counsel for the Petitioner submits, inter alia, that the domestic enquiry was held in violation of the principles of natural justice; that the Enquiry Officer was biased; that the findings are perverse being based on no evidence on record; and that the Labour Court did not apply its mind to the question whether refusing to work overtime amounted to misconduct under the Standing Orders.

8. Mr. P.K. Goswami, the learned Counsel for management demurs contending that there was no violation of the principles of natural justice ; that the Enquiry officer was not biased and no objection was taken on that ground that the Labour Court decided the question of fairness of domestic enquiry as a preliminary issue on facts; that the management did while the Sangha did not adduce evidence before the Labour Court and there haying been sufficient evidence in support of its finding of fact, those cannot be held to be perverse and this writ Court is not to a Court of Appeal.

9. Mr. N.M. Lahiri, the learned Advocate General, Meghalaya, taking over from Mr. Mahanta, replies reiterating that the finding that the domestic enquiry was fair is perverse in view of the act that no evidence is there to show that refusal to work overtime amounted to misconduct; that the management by making the Petitioner work overtime would have violated the provisions of law as to overtime work and payment; and that under the facts and circumstances of the case for the ends of justice the entire domestic enquiry proceedings are liable to be quashed.

10. The first question is the procedural fairness of the domestic enquiry. It transpires from the records that the Petitioner was served with the charge-sheet on 19.10.70 giving him only 48 hours to submit his explanation on 21.10.70. The Petitioner prayed for 7 days time but was given only one day more so he submitted his written statement on 23.10.70 denying the allegations. Can this time allowed be so insufficient as to amount to denial of fair opportunity and violation of the principles of natural justice ? In Delhi Cloth and General MillsCo., Ltd. Vs. Thejvir Singh, where the workman was given only one day notice to face the enquiry, refused the request for adjournment, asked to cross-examine witnesses with non-familar materials and asked to present his defense in an hour, the enquiry was held to have been conducted in gross violation of the principles of natural justice, without giving a real and fair opportunity to the workman to participate in the proceedings. In the Secretary, Assam Chah Mazdoor Sangha v. Presiding Officer, Labour Court Dibrugarh 1981 Labour Industrial Cases 93, it has been observed that what is a reasonable opportunity will always depend on the facts of each case, particularly depending on the nature of the allegation, the witnesses and their availability and the time and assistance required for preparation to appear at the enquiry. The basic ingredient is to afford opportunity to the delinquent to cross-examine management witnesses. Applying the above principles to the acts of this case and considering the nature of the allegations of refusal to work beyond 5 P.M. on the specified dates and the witnesses proposed by the management being garden employees, it cannot be said that the time allowed was so inadequate as to amount to denial of reasonable and fair opportunity to prepare the defence. The contention is accordingly rejected.

11. It is submitted that the entire enquiry was vitiated as it was made and recorded in question and answer form which amounted to veritable cross-examination by the Enquiry Officer who acted both as the Prosecuting officer and as the judge. It is true that in the absence of a presenting officer, the Enquiry officer himself had to put questions to the delinquent as well as to the witnesses who had to answer them. In The Workmen Employed in B and C Mills, Madras Vs. The Management of B and C Mills, Madras, where the Company was not represented by a separate presenting officer, but the Senior Labour Officer of the Company, as authorised by the Manager, recorded the evidence putting questings to the witnesses and elicited answers from them, and thereafter allowed them to be cross-examined by the workman and asked for clarification from him, their Lordships of the Supreme Court held that it. did not warrant the criticism that the Senior Labour Officer acted both as a prosecutor and the judge in so recording evidence, in view of the limited function he was exercising, and the evidence was being ultimately looked into by the Manager. This principle was reiterated in Mulchandani Electrical and Radio Industries Ltd. Vs. The Workmen, that the Enquiry officer in a domestic enquiry can put quest on to the witnesses for clarification on wherever necessary and if be allows the witness to be cross-examined thereafter, the enquiry proceeding cannot be impeached as unfair. In the instant case the Enquiry Officer himself had to put questions to elicit informations from the delinquent as well as the witnesses. The type of questions put and the answers given however do not warrant the criticism that those amounted to cross-examination or that the enquiry officer acted as prosecutor and the judge. For example the Manager was asked "what you have to say in this case ?" and the Manager narrated the facts. Again he was asked what are normal duties of Shri Goel and the Manager described the garden practice and how the delinquent refused to work beyond 5 P. M. similarly, other witnesses were given enough latitude to speak as they wanted. Those can by no means be held to have amounted to cross-examination. No exception can be taken to examination of the Manager again for clarification. Opportunity to cross-examine the witnesses was given to the delinquent. The objection on this ground has therefore to be rejected.

12. The next objection is that the Enquiry Officer was biased. The records of the enquiry show "Shri R.B. Goel was asked if he had any objection against my holding the enquiry ? His reply to this was in negative." Mr. Goswami rightly submits that not only no objection was taken on ground of bias, the delinquent employee categorically said that they had no objection. In workmen of Madura Co. Ltd. and Labour Court, quilon 1966 I LLJ. 490 the enquiry officer could not have conducted the enquiry without the linkelihood of bias as he was one of the persons against whom it was thought that the concerned workman had made the allegation to the charge shaft. It was in that context observed that if from the records of the domestic enquiry it was patent that there was likelihood of bias in the persons who conducted the enquiry, the Labour Court would consider such question without there being any specific plea in the statement filed by the Union before it and that not only justice must be done but it must also seen to have been done. In the instant case there being clear statement by the delinquent that he had no objection to the particular enquiry officer, and there being no allegation against him, the objection on the ground of bias has to be over ruled.

13. The next objection is that the findings arc perverse being based on no evidence and that the Labour Court did not apply its mind to the question whether refusing to work overtime amounted to misconduct under the Standing Orders. The precise question is one of substantial fairness of the enquiry. In the enquiry the delinquent employee stated that the normal duty hours of the garden were from 8 A.M. to 5 P.M. This is also clear from the context of the overtime bills submitted and returned and the correspondence that followed. It also transpires from the evidence on record that the delin quent employee refused to work only beyond and not before 5 P.M. There is neither any allegation nor any proof of his having refused to work up to 5 P.M. Charge No. 1 does not refer to any time. No question was put to the witnesses as to what were the usual duty hours in the garden. The questions put to the witnesses related to normal duties of the delinquent but not his duty hours. The Manager replied to the question as to the normal duties of the delinquent us under:

He used to take weighment of leaf (both times morning and/or evening and third weighment also, if there be any, on any occasion). He used to go to the garden to count the women pluckers engaged in plucking and other garden workers, supervise their works, preparation of the wage book preparing a rough kamjhari and then, at ending the fortnightly labour wage payment; these are normal duties of women Hajira Babu. This is the usual practice in this garden and since a long time and also prevailing in the neighbouring tea estates. By my tetter of 5th October, 1970 I cautioned him for leaf weighment and also for wage payment.

The duties are thus described irrespective of the usual duty hours.

14. The Management witness No. 2 said "he (the delinquent) stopped taking evening leaf weighment on 19th September. 1970 after 5 P.M. (G.T.); from 25th September, 1970 he stopped attending fortnightly labour wage payment after 5 P.M. (G.T.). He further says that this is the practice in the garden that Hajira Mohurers including Shri R.B. Goel are required to take the evening weighment and to attend at the time of fortnightly labour wage payment one due dates. The management witness No. 3 corroborated and further stated that the taking of weighment of green leaf could not be completed before 5 P.M. The management witness No. 4 said that the Hajira Mohurer was to take weighment of green leaf twice daily at 12 noon and at 5 P.M. (G.T.) and that the evening weighment was completed at about 6 P.M. (G.T.). He further said that previously Mr. Goel used to attend the fortnightly labour wage payment after 5 P.M.

15. In his final statement Mr. Goel said-"In may 1970 Shri R.S. Sarma, Manager, Lakwa T.E. told me to do overtime, as I did before and he gave me some money as overtime. As such I was doing overtime in office as well as In the garden and on 8.9,70 I submitted overtime bill for the months of May, June, July and August, but Shri R.S. Sarma has refused to accept my bills under registered post and Shri R.S. Sarma accepted the fame. On 18.9.70 he has sent my bills back to me by registered post in a covering letter stating that the Management never asked me to do overtime work and as such I cannot claim for overtime. After receiving his letter I have stopped working after 5 P.M. (G.T.). Previously I used to get overtime whenever worked after 5 P.M. (G.T.) "The Manager however denied, on 23.11.70, that he gave any assurance as stated by Mr. Goel.

16. In view of the statement of the delinquent that he stopped working at 5 P.M. as he was not paid overtime, it was incumbent to find out whether working after 5 P.M. constituted overtime and refusal to work after 5 P.M. constituted misconduct under the Standing Orders. No information was elicited from the management witnesses on this point. The delinquent''s statement, therefore, remained unchallenged. In the absence of the presenting officer it would be expected of the Enquiry Officer to elicit that information. But it was not done. This amounted to an error apparent on the face of the recorders as no finding as to misconduct could be arrived at without that information, under the facts and circumstances of the case.

17. Overtime means time employed in working beyond the regular hours, time beyond the established limit especially beyond the regular number of working hours. If the regular working hours are from 8 A.M. to 5 P.M, working beyond 5 P.M. unless otherwise arranged, would constitute overtime. The management in their letters to the delinquent impliedly accepted that the delinquent should not exert beyond working hours. The working hours in plantations have been statutorily regulated. Section 19 of the Plantation Labour Act, 1951 deals with weekly hours as under:

19. Weekly hours.- Save as otherwise expressly provided in this Act, no adult worker shall be required or allowed to work, on any plantation in excess of fifty-four hours a week and no adolescent or child for more than forty hours a week.

18. u/s 20 of that Act the State Government may by rules, provide week holidays and payment for work done on a day of rest at overtime rate. Section 21 deals with daily intervals for rest and Section 22 deals with spread over. u/s 23 there shall be displayed and correctly maintained in every plantation a notice of periods of work in such form and manner as may be prescribed showing clearly for every day the periods during which the workers may be required to work ; and subject to the other provisions of the Act, no worker shall be required or allowed to work in any plantation otherwise than in accordance with the notice of periods of work displayed in the plantation. u/s 35 of the Act whoever except as otherwise permitted by or under that Act, contravenes any provisions of the Act or any rules made thereunder, prohibiting, restricting or regulating the employment of persons in a plantation shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees or with both.

19. Section 13 of the Minimum Wages Act, 1948 provides for fixing hours for a normal working day and it enjoins the appropriate Government to fix in regard to any schedule employment where minimum wage rates are fixed, the number of hours of work which shall constitute a normal working day inclusive of one or more specified intervals. Section 14 of that Act deals with overtime as under:

(1) Where an employee, whose minimum rates of wages is fixed under this Act by the hour, by the day or by such a longer wage period, as may be prescribed, works

on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or part of an hour so worked in excess at the overtime rate so fixed under this Act or under any law of the appropriate Government for the time being in force which ever is higher.

(2) Nothing in this Act, shall prejudice the operation of Section 59 of the Factories Act, 1948, in any case where those provisions are applicable.

20. Rule 73 of the Assam plantation Labour Rules, 1956 framed u/s 23 of the plantation Labour Act provides as under:

73 Notice of period of work.- The notice prescribed in Section 23 shall be in Form No. 6.

(2) It shall be written in English and in a language understood by the majority of workers in the plantation, shall be displayed at some conspicuous and convenient place and shall be maintained in a clean and legible condition.

(3) Any modification in the periods of work in the plantation which may necessitate a change in the aforesaid notice shall be intimated to the Inspector in duplicate, along with a copy of the original notice, either before the change is made or within three days of making any such change.

21. It is agreed by the counsel of both sides that the Plantations Labour Act and the Rules framed there under are applicable in this case. The payment of wages Act and the Minimum wages Act are also admittedly applicable. In Workmen of Bombay Port Trust Vs. The Trust of The Port of Bombay, interpreting Sections 13 and 14 of the Minimum wages Act and Rules 24 and 25 of the Minimum wages Rules, 1950 it was observed with reference to the facts of that case, that if work of any day is taken which goes beyond 9 hours, the provisions of Section 14 apply. That section speaks of overtime. Overtime is payable for work in excess of the number of hours constituting a normal working day. Where an employee works on any day in excess of 9 hours, the employer shall pay him for every hour or for part of an hour so working in excess at the overtime rate.

22. The charges in this case have been framed without reference to the normal working hours. Charge I (b) mentions wilful disobedience of reasonable instructions of the management. An instruction cannot be reasonable if it is violative of statutory provisions of law. It was, therefore, very material to be informed about whether to work beyond 5 P.M. would be within the normal working hours. Refusal to work beyond the normal working hours normally will not constitute misconduct under the Standing orders, At any rate, from the evidence on record there is nothing to show that in the gardens the normal duty hours was not from 8 A.M. to 5 P.M. and that work beyond 5 P.M. did not amount to working overtime, Without this basic Information the finding of the Labour Court that the domestic enquiry was fair and its finding that the delinquent was guilty of misconduct cannot be sustained.

23. The next question is the extent of jurisdiction of this writ Court in regard to the award. In T. Prem Sagar Vs. The Standard Vacuum Oil Company Madras and Others, their Lordships observed that even if the Division Bench was right in holding that the impugned order should be corrected by the issue of a writ of Certiorari, it would have been better if it had not made its own finding on the evidence and pass its own order in that behalf. In a writ proceeding if an error of law apparent on the face of the record is disclosed and a writ is issued, the usual course adopt is to correct the error and send the case back to the Special Tribunal for decision in accordance with law. It would, be inappropriate for the High Court to exercise its writ jurisdiction to consider the evidence for itself and roach its own conclusion in matters which have been left by the Legislatures to the decisions of the specially constituted tribunals.

24. In Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, it was bserved:-"This article (Article 226) is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found.

The Supreme Court has also held that the High Court may issue prerogative writs or issue order which would enable the High Court to grant the reliefs to meet the peculiar and complicated requirements of the country.

25. It is accepted that some limitations are implicit in Article 226 on the power of this Court in granting the relief which on the finding of the Labour Court, the Petitioner would be entitled to, Following AIR 1954 SC 477 it was ruled in Sawarn Singh and Another Vs. State of Punjab and Others, that certiorari can be excercised only for correcting errors of jurisdiction committed by inferior courts and Tribunals. A writ of certiorari can be issued in supervisory, and not in appellate jurisdiction and a court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be, This was reiterated in Natha Singh and Others Vs. The Financial Commissioner, Taxation, Punjab and Others, holding that in deaking with a petition under Article 226, the High Court cannot exercise the jurisdiction of appellate Court and cannot re-exercise the jurisdiction of an appellate Court and cannot re-examine or disturb the findings of fact arrived at by an inferior court or Tribunal in the absence of any error of law. In Workmen of Dodsal Private Ltd. Vs. Dodsal Private Ltd. and Another, workmen of Dodsal Pvt. Ltd. v. Dodsal Pvt. Ltd., where on reference to the Industrial Tribunal of its earlier award for interpretation the Tribunal had its own interpretation of the award, the High Court was held not justified in reappraising the material in seeking to give its own interpretation of the award as if the High Court was exercising appellate powers over the Industrial Tribunal.

26. In Delhi Cloth General Mills Co. v. Ludh Budh Singh 1972 I S.C.C. 595 corresponding to Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh, the following principles, among others, were formulated:

(4) When a domestic enquiry has been held by the management and the management replies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary Issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the Management. However elaborate and cumbersome the procedure may be, under such circumstance, it is open to the Tribunal to deal, in the first instance as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management then no additional evidence need be cited by the management. But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employees to lead evidence contrary as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the Preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstance, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as. prima facie proof of the alleged misconduct. On the other hand, the management, will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask to management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.

(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of or asked by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to docdie whether the proceedings have been held properly and the findings recorded therein are also proper.

27. In Gujarat Steel Tubes Ltd. v. Gujarat Steet Tubes Mazdoor Sabha 1980-2 SCC 593 : AIR 1980 SC 1895-1980 Labour and Industrial Cases 1004, it was observed that

Broadly stated, the principle of law is that the jurisdiction of the High Court under Article 226 of the Constitution is limited to holding the judicial or quasi-judicial Tribunals or administrative bodies exercising the quasi-judicial powers within the leading strings of legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act. So long as the hierarchy of officers and appellate authorities created by the statute function within their ambit the manner in which they do so can be no ground for interference.

In the same case it was observed that if misconduct was basic to the discharge and no enquiry precedent to the dismissal was made, the story did not end there in favour of the workman. The law is well settled that the management may still satisfy the Tribunal about the misconduct.

28. In Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, Labour and Industrial Cases 155, it was observed that it is well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such similarity or incidental powers as are necessary to discharge, its functions effectively for the purpose of doing justice between the parties.

29. In M/s. Arsteep Machine Tools v. Labour Court 1981 15 SCC (LS) 253, it was held that having reached the conclusion that the domestic enquiry was improper, it was open to the Labour Court to enter into the dispute on its merits and pronounce it award.

30. Considering in light of the above principles and also considering the fact that in this case the management did submit an application to adduce further evidence, the impugned award is quashed and the case remanded to the Labour Court, Dibrugarh which should proceed with it as it would have proceeded had it itself found the domestic enquiry to be defective or vitiated, in light of the observations made above.

31. In the result, this petition is allowed with costs of Rs. 500/-. The Rule is made absolute, Case remanded.