Decided on August 13,1973

Management Of Kasojan Tea Estate Appellant
Presiding Officer, Labour Court, Assam, Dibrugarh And Others Respondents


P.K. Goswami, C.J. - (1.) This application under Article 226 of the Constitution of India is directed against an award of the Presiding Officer, Labour Court, granting reinstatement with all back wages to the third respondent, who is a workman employed in the petitioner's company.
(2.) The following issues were referred to the Labour Court for adjudication; "(1) Whether the management of Bokahola Tea Estate and/or the management of Kasajan Tea Estate are justified in dismissing Shri B.R. Chakravarty from service (2) If not, is he entitled to reinstatement or to any other relief in lieu thereof - The parties submitted their written statements and documents and when the case was ready for hearing Life Labour Court on 10-2-1972 fixed 14-3-1972 for "P. hearing raised by the management". We are informed at the Bar that the words "P. hearing" mean here preliminary hearing and not peremptory hearing. This is also clear from the next order of the Labour Court, which was recorded on 14-3-1972. It is appropriate to set out that order; "The management has raised a preliminary point. The workman has also raised the point that the person who passed the order of dismissal had no authority to do so. These points will be heard preliminarily on 16-3-72." On 16-3-72, it appears one witness was examined for the management and the workman did not adduce any evidence. The about Court recorded the following order; "Fix 17-3-72 for argument on the p: points raised." On 17-3-72 arguments were heard and decision was reserved. On 22-3-72 the following order was recorded by the Labour Court: "Award given. Send copies of the award to the Government for publication."
(3.) It appears that the learned Labour Court forgot that it was only considering the two points raised, one each by the workman and the management, and it had to make its decisions on these two points raised. When we perused the award, we did not find any decision on these two issues. This point is also conceded by Mr. Chaudhuri. the learned Counsel for the third Respondent. The Labour Court found that the original charge was only "dereliction of duty - neglect of duty", as it appears from Annexure 'A' to the petition, dated 17-8-1968. According to the Labour Court, dereliction of duty or neglect of duty does not figure as a misconduct under Paragraph 10 (a) of the Standing Orders. The Labour Court undoubtedly took note of another charge-sheet dated 4-9-1968. marked as Ext. 5 before the Court, which is Annexure 'F' to the petition. The Labour Court found that the domestic enquiry was conducted with reference to the charge of dereliction of duty mentioned in Annexure 'A', marked as Ext. 3 before the Court, but there was no enquiry with regard to the charges under Paragraphs 10 (a) (1) and 10 (a) (5) of the Standing Orders mentioned in Annexure 'F'. That being the position, the Labour Court held that the dismissal order was bad and the workman was entitled to reinstatement with all his back wages with continuity of service. This appears to have disposed of the two issues referred to the Labour Court on the merits although it has held in answer to Issue No. 1 as follows: "The issue is therefore decided in favour of the workman on the preliminary point raised on his behalf." It passes our comprehension how this can be a decision on a preliminary point when the preliminary issues which the Labour Court had noted were not even answered. The Labour Court has observed as follows: "That being the position, the management could not terminate the service of the workman under clause 10 (a) (1) and 10 (a) (5) of the Standing Orders on he charge of "dereliction of duty - neglect of duty" even if such allegations were found to have been proved against the workman inasmuch as such acts or. omission did not constitute gross misconduct, etc., under clause 10 (a) (1) of the Standing Orders placed before me. The management was therefore not justified in dismissing the workman for some alleged acts of dereliction of duty which even if proved would not constitute gross misconduct under the Standing Orders." Mr. Chaudhuri presses in service the same reasoning of the Labour Court which led to the above conclusion. We are, however, unable to hold that the Labour Court is correct in the conclusion mentioned above. It is true that Paragraph 10 of the Standing Orders describes certain acts or omissions which constitute misconduct and under Paragraph 10 (a), eleven categories of acts or omissions are said to constitute gross misconduct. It is not possible to hold that every misconduct which an employee may commit can be exhaustively described in the Standing Orders. The Standing Orders cannot by any stretch of imagination be said to be exhaustive in that field. whether a particular misconduct has been committed or not, even though it may not be described in so many words in the Standing Orders, will be a matter for the Labour Court to consider. Whether a particular misconduct will entitle the management to punish the employee with dismissal will also be a matter in an appropriate case for decision by the Labour Court. But mere omission of a certain type of misconduct in the Standing Orders would not entitle the Labour Court to completely shut its eyes to the misconduct and to hold the dismissal order as unjustified for that sole reason. The Labour Court is, therefore, absolutely wrong in holding that even if the misconduct alleged in the first charge-sheet is proved, the dismissal order has to be held as unjustified. That takes us to the second charge-sheet (Ext. 5), Annexure 'F' to the petition. After the enquiry the management found that the workman was entitled to a notice of the misconduct mentioned in the second charge-sheet which it may be reasonable for him to take notice of to explain his conduct. It is with that end in view that Annexure 'F' was addressed to the workman giving him two days' time to submit his explanation. The workman submitted his explanation but no further enquiry was held by the management and the impugned order was passed. It is clear, therefore, that if the second charge-sheet is also relied upon by the management, there was no domestic enquiry with regard to the second charge-sheet. That vitiates the entire procedure in the domestic enquiry leading to the impugned order. The Labour Court would have been justified in answering the first preliminary point against the management and in holding that there was no proper enquiry with regard to the charges and this decision should have been announced by the Labour Court so that the management might have an opportunity to adduce evidence before the Labour Court to establish the charges. This opportunity was not made available to the management by the Labour Court since it took an erroneous view of deciding the whole case on the merits while deciding only the two preliminary points. There was, therefore, no disposal of the reference in accordance with law. The impugned award is, therefore, set aside and the reference is restored to the file of the Labour Court for disposal in accordance with law and in the light of the observations made herein above. We desire that the reference shall be disposed of by a Labour Court other than the Labour Court which has passed the impugned award, and appropriate orders may be passed by the Government under Section 33-B of the Industrial Disputes Act, A copy of this order will be sent to the Government.;

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